The responsibility of Spain 



FOR THE 

Destruction of the United States Battleship Maine 
IN HAVANA HARBOR, FEBRUARY is, 1898, 

AND THE 

ASSUMPTION BY THE UNITED STATES, UNDER THE TREATY 

OF 1898, OF SPAIN'S PECUNIARY LIABILITY FOR 

THE INJURIES TO, AND DEATHS OF. 

HER OFFICERS AND CREW. 



Argument 

OF 

Charles Henry Butler, before the Spanish Treaty 
Claims Commission, December 18-21, 1901, 

On behalf of Claimants represented by Butler & Harwood. 






NEW YORK : 

The Evening Post Job Printing House, 158 Fulton Street. 

(Evening Post Building. > 

1902. 




p 

Pers. 

3 F'02 



^j-i 



TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT. 



PAGE 

Statement of the case 1 

Abstract of petitions 

Article VII. of Treaty of Peace 2 

Act of March 2. 1901, appointing Commission 3 

Position of Attorney-General on Maine cases 3 

Motions to dismiss and disposition thereof -i 

Extracts from Attorney-General's brief on motions to dismiss 5 

Propositions of law in Government's brief 6 

Position of the claimants in regard thereto t 

POINTS. 

I. 

AS TO JURISDICTION. 
First Point. 

Extent of Jurisdiction of Spanish Treaty Claims Commission 8 

Every fact necessary to confer jurisdiction -alleged in petitions. 9 

Questions of responsibility cannot be raised on demurrers. ... 10 

Extract from Attorney-General's brief as to jurisdiction 10 

Second Point. 

Duty of this Court to take jurisdiction of the claims. 1 1 

Third Point. 

Jurisdiction of similar tribunals discussed 13 

The Aspinwall bond case against Venezuela li 

Extract from Moore's International Arbitration 15 

Jurisdiction of Commissions over claims of Government officials, 

civil and military 1? 

Fourth Point. 

The burden of sustaining demurrer for want of jurisdiction upon 

the Government 18 

Congress intended this Court to take jurisdiction of all claims. 19 



II TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT. 

II. 

AS TO THE MERITS OF THE DEMURRERS. 

PAGE 

Fitth Point. 

Olaims should be allowed "on their merits and on the principles of 

equity and of international law " 20 

International law part of law of United States 21 

Precedents in which United States has demanded indemnity for 
officials, civil and military, must be regarded as interna- 
tional law by this Court; precedents cited 22 

Sixth Point. 

Spain responsible for the destruction of the Maine; such destruction, 

however, not an act of war, or one of the causes of the war. . 23 
Government's inconsistent position in regard to Spain's con- 
nection with the destruction of the Maine 24 

Seventh Point. 

Legislative history of the declaration of war 25 

Extracts from report of Naval Court of Inquiry and President's 

messages 20 

Report of Committee on Foreign Relations of April 13, 1898. . 27 

Joint resolution for recognition of independence, etc 29 

Act of April 25, 1898, declaring war 30 

Effect of Attorney-General's proposition that Maine was the 

cause of the war on American principles of arbitration .... 31 

Eighth Point. 

Treaties of peace do not necessarily obliterate claims of citizens, 

even though connected with causes of war 32 

Views of Daniel Webster on this point 33 

Views of Kent, Wheaton. Woolsey and others on this point. . . 34 

Views of Halleck, Phillimore and Lord Stowell on this point. . 35 

Ninth Point. 

Under international law Governments must compensate citizens for 

claims released by treaty 36 

Supreme Court decisions on this point and extract from 

Grotius 37 

Tenth Point. 

The foregoing principle of international law a part of the con- 
stitutional law of the United States 38 

Decisions cited that claims of citizens of the United States 

against foreign powers are property rights 39 

Obliteration of such claims by treaty held to be the taking of 

private property for public use under the Constitution. ... 39 
Just compensation must be rendered for taking such claims for 

public use 40 



TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT. Ill 

PAGE 

Eleventh Point. 

Treaties of peace on same footing as other treaties 40 

Proceedings of Constitutional Convent inn of 1787 41 

Authorities cited on this point 41 

Twelfth Point. 

The relinquishment of claims by Article VII. of the Treaty of 
Peace included claims of every nature, whether connected 
with causes of war <>r not 42 

Thirteenth Point. 

Treaties affecting rights of citizens must be construed liberally. . . 43 
In this case the construction must be liberal for the citizens 

whose claims were extinguished 44 

Position of President McKinley in regard to these claims. ... 45 

Fourteenth Point. 

Claims extinguished by the Treaty of Peace necessarily include 

these claims .... 45 

Distinction between national and individual claims 40 

Extracts from opinion in French Spoliation case 46 

Other cases in which national and individual elements have 

existed 47 

Charles Sumner's report in French Spoliation cases and his 

views on national and individual claims 49 

List of French Spoliation cases 49 

Fifteenth Point. 

Moral duty resting upon United States Government to present 

claims to Spain ■ 50 

Authorities cited on responsibility of Governments for aban- 
doning claims of citizens 50 

Policy of the United States not to abandon claims of citizens. . 51 

Sixteenth Point. 

Presumptions in construing treaty must be in favor of petitioners, 
as they are officers, sailors and marines, or the widows and 
orphans of, officers, sailors and marines, of the Navy of the 

United States 51 

Policy of the United States always to protect its soldiers and 

sailors in foreign lands 52 

The Baltimore case 52 

Extracts from President Harrison's message 52 

Extract from Secretary Blaine's instructions 53 

Extract from Secretary Foster's instructions 54 

Settlement of the Baltimore case and payment by Chile 54 



IV TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT. 

PAGE 

Government's effort to distinguish Baltimore case, and extracts 

from Mr. Russell's argument 55 

Attempt to distinguish case refuted by statements in President 

Harrison's message : extracts therefrom 55 

The case of the Chesapeake sailors, United States vs. Great 

Britain ; indemnity for attack by the Leopard 57 

The case of the General Arms/rung, United States rs. Portugal, 

and demand for indemnity of crew of privateer 59 

The case of the Wyoming, United States vs. Japan, and in- 
demnity collected for crew 5!t 

Government's attempt to distinguish Wyoming case refuted by 

Senate Committee's Report 59 

The case of the Water Witch. United States vs. Paraguay: in- 

demity collected for sailor killed while on duty GO 

The HuesTcen case, United States vs. Japan, indemnity collected 
for member of legation killed, and extracts from Foreign 
Relations Reports .... ill 

The case of the Spanish. Consuls in New Orleans and Key West. 
Spain vs. United States, indemnity paid by United States 
to consuls assaulted by mob 61 

The Margery case. Great Britain vs. China : indemnity de- 
manded and collected for military officer killed 62 

The case of the British Sailors in Japan, Great Britain vs. 
Japan: indemnity demanded and collected for British 
sailors killed in legation, and extracts from Foreign Rela- 
t ions Reports in regard thereto . 62 

The case of the French Corvette Dupleix, France vs. Japan, 
indemnity demanded and collected for killing of French 
officers and sailors i;:; 

Seventeenth Point. 

Spain's responsibility not affected by the fact that injuries occurred 
on a United States battleship: doctrine of exterritoriality ap- 
plicable to war vessels does not relieve sovereign of port from 

protection of vessel 64 

importance of this rule to the United States 64 

Attorney-General's position on exterritoriality stated in extracts 

from his brief 65 

Sicretary Sherman's position that Spain was responsible lor 

safety of vessel (i6 

Doctrine of exterritoriality applicable equally to ships and em- 
bassies, and extracts from Wheaton in regard thereto .... 6? 
Position of Col. George B. Davis in regard to principles of ex- 
territoriality and their application to the Maine case 61 

Extract from last edition of Professor Davis' book on inter- 
national law in regard to Maine case 68 



Table of contents and analysis of argument. V 

PAGE 

Eighteenth Point. 

The claims relinquished by the treaty included all claims, whether 
same had been presented by United States to Spanish Govern- 

mentor not 69 

Definition of the word claims and authorities cited in regard 

thereto 70 

Unnecessary to present claims: position of Paris Commissioners 

in regard thereto "' 

Other treaties cited in which presentation made an essential 

element for recognition or to confer jurisdiction 72 

Correspondence of State Department refutes Attorney-Gen- 
eral's position ■ ; » 

Act of March 2, 1901, gives jurisdiction to all claims, whether 

presented or not; extracts from the Act 74 

Nineteenth Point. 

Maine claims formally presented by the United States to Spain be- 
fore the war and demand for reparation mad.' 75 

Correspondence between State Department and Spanish Gov- 
ernment in regard to Maine claims 76 

Spain charged with responsibility for destruction of the Maine 

by Secretary Sherman 77 

Spain's offer to arbitrate and correspondence in regard thereto. 78 

Eeport of Senate Committee on Foreign Relations in regard to 

responsibility of Spain for destruction of the Maine ?!» 

Secretary Day's letter of July 30. 1898, demanding Porto Rico, 

etc., as indemnity for injuries to citizens so 

Correspondence between American and Spanish Commissioners 

in Paris in regard to claims of citizens !Sl 

Spanish Commissioners' offer to arbitrate question of re- 
sponsibility for Maine declined by American Commis- 
si 
sioners - 

Same offer repeated and declined ^3 

Addition to Article VII. that United States would adjudicate 

claims of its citizens 84 

No contract made by Peace Commissioners with Spain in regard 

to Maine, as stated by Attorney-General 85 

In construing treaty, rights of American citizens ami not " sen- 
sibilities " of Spain are to be considered by this Court b5 

Twentieth Point. 

Spanish Treaty Claims a domestic commission, and the Government 

of Spain has no standing before it sli 

Spain not interested in amount of claims awarded, as do con- 
tingent liability exists 86 



VI TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT. 

PAGE 

Twenty-first Point. 

United States received Porto Rico, etc., specifically to pay claims of 

its citizens 88 

Government accepting territory for indemnity is under same ob- 
ligation to pay to citizens as though it received cash 88 

Twenty-second Point. 

Individual claims against Governments for injuries of and deaths to 

citizens of other countries recognized by international law.. 89 

Recognized by United States 90 

The case of the Virginius and the distribution of the award ... DO 

Twenty-third Point. 

Statute of March 30th, 189S, not a bar to petitioners' claims. Pay- 
ments thereunder cannot be set up on demurrer 91 

This defense could not have been pleaded by Spain, ami there- 
fore not pleadable by United States 92 

Twenty-fourth Point. 

The moral obligation to adjudicate these claims for the petitioners. . 92 
Effect of decisions of this Court upon international law and 

claims of United States against foreign nations 93 

Liability of foreign nations to United States for injuries to 
citizens will eventually be measured by liability admitted 
by the United States in these cases 93 

Twenty-fifth Point. 

Demurrers should be overruled 94 



Before tbe Spanish (Treaty Claims Commission. 

Act of Congress of March 2, 1901. 



Harry 8. McCann 

YS - / No. 30. 

The United States. 



Catharine Burns 

vs. 
The United States. 



3IAINE CASES. 

No. 31. 



Argument of Charles Henry Butler for Claim- 
ants on Demurrers. 

STATEMENT. 

The claims in both of these cases are for damages occasioned by the 
explosion of the Maine in Havana Harbor on February 15, 1808. The 
claimant McCann is a survivor and demands $10,000 as damages for 
injuries which he sustained ; the claimant Burns demands $"-i0,000 as 
damages for the death of her son, who was killed at the same time.* 

In each case a petition has been filed in accordance with the pro- 
visions of the statute establishing the Commission, and with the rules and 
practice adopted by the Commission; each is properly verified, sets forth 
concisely and without unnecessary repetition the facts upon which the 
claims are based, together with the schedule setting forth the items 
claimed: each states the full name, residence and citizenship of the claim- 
ant and the amount of damages sought to be recovered ; each has been 
signed and verified, and filed with the Clerk of the Commission under 
and pursuant to the statute, as well as the rules of this Commission ; 
the prosecution, therefore, of each claim has not only been commenced, 
but has been properly commenced, and is properly before this Commis- 

* About une hundred and thirty claims similar to those of these petitioners have been 
filed with the Spanish Treaty Claim- Commissions. Most of them are claims of relatives 
of men who were killed, but a few are claims of survivors who were injured. About 
sixty of the petitioners are represented by Butler A: Harwood, 135 Broadway, New York- 
City, who are the attorneys for the petitioners MeOann and Burns. The total amount of 
claims in what are known a9 Maine cases is about $2,500,000. 



a BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

sion. and can only be prosecuted, or defended, in accordance with the 
provisions of the statute and the rules adopted by the Commission. 

Briefly stated, each petition sets forth the following facts : 

I. — That the petitioner is a citizen of the United States. 

II. — That the petitioner has a claim against Spain which arose in the 
manner state:!, and between February, 1895, and April, 1899 — to wit, 011 
February 15, 1898. 

III. — That the claim has never been satisfied. 

IV. — That the Maine at the time of the explosion was in the Harbor 
of Havana on a mission of peace, and rightfully there, and that the per- 
sons killed and injured were rightfully on board other. 

V. — That the injuries of the claimant, McCann, and the death of 
Burns, were the result of the explosion, and the claimants have actually 
sustained damages, as alleged, by reason thereof. 

VI. — That such explosion was not the fault of the petitioner or of any 
person or persons in the employ, or under the control, of the United 
States, nor did it result from any interior cause whatever. 

VII. — That such explosion and the resultant damages were caused by 
an exterior explosion: that the Government of Spam did not assure 
safety and security to the said battleship: that the explosion and re- 
sultant damages were directly caused by the wrongdoing and negligence of 
Spain and its officers and ageuts: and that the Government of Spain was 
and is responsible and liable therefor. 

VIII. — That peace existed between Spain and the United States on 
February 15, 1898. 

IX. — That Havana. Cuba, including the harbor thereof, on February 
15, 1898, was under the control and dominion of the Government of 
Spain, and of no other country or government. 

X. — That the political departments of the Government of the United 
States have established as an historical fact, which is binding upon the 
judicial department, that the Spanish Government was responsible for 
the destruction of the Maine. 

On December 10, 1898, a treaty of peace was concluded between the 
United States and Spain : by Article VII. of this treaty each nation 
released the other from all claims, national and individual, to the most 
complete extent, and by the broadest terms, which could possibly have 
been used : and the United States also declared that it would adjudicate 
and settle the claims of its citizens which were thus relinquished.* 



* " Article VII.— The United States and Spain mutually relinquish all claims for 
indemnity, national and individual, of every kind, of either Government, or of its citizens 
or subjects, against the other Government, that may have arisen since the beginning of the 
late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, 
including all claims for indemnity for the cost of the war. 

" The United States will adjudicate and settle the claims of its citizens against Spain 
relinquished in this article" (30 U. S. St. at L., pp. 1754-1757.) 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. O 

On .March 2, 1901, Congress passed an act directing the President to 
appoint this Commission to adjudicate the claims relinquished by the 

article of the treaty.* 

The act provides the method in which claims are to lie presented 
and prosecuted and the procedure to be adopted by the United States. 
It also gives the Commission certain powers as to making its rules and 
conducting its business. 

Pursuant to this statute, and this Commission being the only court 
clothed with any jurisdiction to receive, examine and adjudicate claims of 
this nature, the claimants have appeared at its bar to seek the redress 
to which they are entitled, and which they can obtain in no other manner. 

Instead of answering or demurring to the petitions as required by the 
statute of March 2, 1901, the Attorney-General moved to dismiss the 
claims " for want of jurisdiction " of the Commission.! 

To these motions the claimants raised the preliminary objection that 
under the statute of March 2, 1901, the defendant was confined to de- 
murring or answering. The preliminary objections were argued on 
November 20th, and overruled, but on December 11th the motions were 

* " Chap, sun.— An Act to carry into effect tlie stipulations of article seven of the 
treaty between the United States and Spain concluded on t lie tenth day of December, 
eighteen hundred and ninety-eight. 

Be it enacted by the Semite and House of Representatives of the United Stales of America 
in Congress assembled, That the President of the United Slates shall appoint by and with 
the advice and consent of the Senate, five suitable persons learned in the law, who shall 
constitute a commission, whose duty it shall be, and it shall have jurisdiction, to receive, 
examine, and adjudicate all claims of citizens of the United States against Spain, which 
the United States agreed to adjudicate and settle by the seventh article of the treaty, 
concluded between.the United States and Spain, on the tenth day of December, A.I). 1898. 
It shall adjudicate said claims according to the merit of the several cases, the principles of 
equity, and of international law " (SI U. S. St. at L., p. 877). The act consists of 16 sec- 
tions, tiie first only is here quoted. 

| The grounds stated in the motions to dismiss are as follows: 

" 1. That the alleged claim is not within the terms or the contemplation of the Treaty 
of Peace between the United States and the Kingdom of Spain of December 10, 1898, or of 
the Act of Congress of March 2, 1901, organizing this Commission ; tor that whatever may 
have been the facts out of which the alleged claim originated, such claim was extinguished 
at or before the execution of the Treaty of Peace, ami the Act of Congress aforesaid, as ap- 
pears by reference to protocol No. 20, of December 6, 1898. (Treaty of Peace between the 
United States and Spain, Senate, 55th Cong., 3rd session, Doe. No. 62, pari 2, pp. 242-244.) 

" 2. That the alleged claim has been finally disposed of and concluded by the action 
of the political department of the United States, and this disposition and conclusion by 
the appropriate department of the Government bars the jurisdiction of this Commission or 
any other tribunal, in respect to the subject matter. 

" 3. That by the Act of Congress of March 30, 1898 (U. S. Stats. L.. Vol. 30, p. 346) 
entitled 'An Act for the relief of the sufferers by the destruction of the United Slates S. S. 
Maine in the harbor of Havana, Cuba,' the United States has satisfied all claims for pecuni- 
ary indemnity sustained by individual citizens as a result of the acts alleged in the 
petition." 



•1 BEFORE THE SPANISH TREATY CLAIMS COlt JllSSlOtf . 

withdrawn and demurrers substituted therefor, the grounds for which 
were somewhat different than those stated in the motions to dismiss.* 

In his brief on the preliminary objections the Attorney-General 
declared that the motions to dismiss practically were demurrers and 
could be considered and argued as such. On the argument of the 
objections, however, a different position was taken, and when a member 
of the Court asked why the motions were resorted to instead of demurrers, 
one of the counsel for the Government declared that the petition was 
drawn in such a manner that a demurrer was impractical. In fact, the 
learned counsel for the Government, f who has had great experience 
in international disputes, and has practiced extensively before tribunals 
of this nature, declared that " the petitions were marvelous examples 
of admirable pleading," and that it would probably be impossible to 
sustain demurrers thereto, owing to the allegations of fact which would 
necessarily have to be admitted on the argument. 

After the Court had overruled the preliminary objections, the 
Attorney-General filed a brief on behalf of the Government in support of 
the motions to dismiss in which the position was taken: That 
" among the causes of war, formally set forth in the Joint Resolution 
of April 20, 1898, was the destruction of a United States battleship, 
with two hundred and si xty-six of its officers and crew, while on a 
friendly visit to Havana. * * * that it is a familiar principle of 
international law concerning war and treaties of peace, that the causes 
of war pass into oblivion, if not expressly saved therefrom by the treaty 
of peace. * * * That it is submitted that it was the intention of 
the treaty not to provide for, but to relinquish and leave in oblivion as 
settled in the tribunal of war, the grievance referred to expressly in the 
Joint Resolution of April 20, 1898"; his first point concludes with 
the following remarkable statement: " The destruction of Spanish lives 
and the loss of Spanish possessions atoned for and settled any supposed 
responsibility of Spain for the destruction of that national ship with its 
officers and crew." The brief then refers to the report of the Naval 
Court of Inquiry and to the Act of March 30, 1898, by which a sum not 

* The grounds of the demurrers are stated as follows: 

Now conies the United States, by the Attorney General, and demurs to the petition 
herein on the following grounds: 

1. That the Commission has no jurisdiction of the subject matter stated in the petition. 

2. That the petition does not contain facts sufficient to constitute a cause of action or 
entitle the claimant to an award against the defendant. 

3. That no liability ever existed on the part of Spain in favor of the claimant by 
reason of the alleged acts complained of in the petition, and there is no liability on the 
part of the United States in favor of the claimant by reason of the Treaty of Peace between 
the United States and Spain of December 10, 1898. 

4. That the alleged claim is not within the terms or the contemplation of the Treaty 
of Peace between the United States and the Kingdom of Spain of December 10, 1898, or 
the Act of Congress of March 2, 1901. 

\ Mr. Alexander Porter Morse. 



e 



ARGUMENT OF CHA.S. H. BUTLER IN MAINE CASES. 5 

greater than one year's sea pay was allowed to officers and seamen of the 
Maine for articles lost by reason of the destruction of the vessel, and the 
following conclusion deduced therefrom: "This action of the political 
department of the Government clearly demonstrates that a claim for 
money indemnity on behalf of individual citizens was never presented or 
intended to be presented against Spain, and that Article VII. of the 
treaty, therefore, was not intended to relinquish any claim on behalf of 
citizens against Spain." 

Paragraphs III. and IV. of the brief are the most remarkable, however, 
in that they are practically a plea entered on behalf of the Spanish 
Government by the Attorney-General of the United States; they are 
therefore quoted in full in the notes for the purpose of showing that the 
Attorney-General has endeavored at every opportunity to make this 
(Jourt believe that the adjudication clause of Article VII. of the treaty of 
1898, was made for the benefit of Spain instead of for the benefit of 
citizens of the United States whose claims against Spain were obliterated 
by the treaty as against that country.* 

The withdrawal of the motions and substitution of demurrers was 
another change of front on the part of the Government, and shows that 
it desires to avoid, if possible, any adjudication of these claims and 
that it intends to use every effort to prevent tin's Court from even con- 
sidering them. 

Before the argument on these demurrers the Attorney-General 
filed a consent that the brief above referred to should stand as his brief ii 
support of the demurrers: since the argument the counsel for the Gov 

*"3. Notwithstanding the broad language of the treaty and the jurisdictional ait, it is 
not to he supposed t hat the Government of Spain or the Congress of the United States 
intended that this commission, constituted in a spirit ot reconciliation to asceitain in a 
familiar way the losses of American citizens ' that may have arisen since the beginning of 
the late insurrection in Cuba,' which was in February or March, 1895, should enter upon 
an inquiry into the responsibility of Spain tor the destruction of the battleship reft-irid 
to and bring in ex parte a judgment holding Spain up to the obloquy of the civilized 
world. That inquiry had been submitted to another tribunal, had been exhaustively car- 
ried on, had been acted upon by Congress, hail been followed by war partially based upon 
the alleged destruction, and the subject hail beer-, carefully avoided in the treaty of recon 
ciliation and peace. 

" Spain had offered to submit to an impartial investigation by some third power, and 
had herself made an investigation, with the same indefinite result, it seems, as that made 
by the United States. To suppose that this commission, after all that has been referred 
to and with the means and appliances which have been furnished to it, suitable only for 
the ordinarv purpoaes of a claims commission, was intended to open up and undo and do 
over again this inquiry into the responsibility of the Spanish Government, with the result 
of disgracing Spain on the one hand and on the other of discrediting the Government of 
the United States, is entirely unreasonable. 

"4. If the commission shall be in doubt upon this subject, so obviously unthought of 
in the constituting of the commission, so far beyond its power to ait upon adequately, ami 
involving the sensibilities of a friendly power, its doubt should he resolved in favor of 
leaving to the political department of the Government a business which has already so 
long and seriously engaged its attention." 



Ill 



(5 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

eminent have filed an additional brief in which their position is finally 
stated with some degree of definiteness; seven propositions are stated* at 
length, which are afterwards reduced to three principal points as follows:f 

" I. — That the destruction of the battleship Maine was one of the 
causes of the war between Spain and the United States. J 

" II. — That no liability ever existed on the part of Spain in favor of the 
claimants by reason of the alleged acts complained of in the petitions. § 

* The seven propositions in the Government's brief are as follows : 
" First. — That the Commission possesses do power or jurisdiction to review any act 
of the United States Government, whether enacted by its political, legislative or executive 
department within the scope of its constitutional function, unless there be clear and 
explicit authority to this effect appearing in the statute organizing the Commission. 

" Second. — That no claim for indemnity, national or individual, except such as 
existed against Spain at the time of the execution of the treaty of peace can be enter- 
tained by the Commission. 

" Third. — That no national claim for indemnity on account of the destruction of the 
Maine leasever asserted by the United States against Spain, and that no individual claim for 
indemnity arose out of this occurrence. 

"Fouith. — That the battleship Maine, her crew and equipment, constituted an 
entirety, a unit, a military and governmental oryanism, which in its nature was not 
severable ; and that, as a consequence, any claim for indemnity which may be conceived 
to have had any existence at any time was a purel)' national claim, and could only be 
affirmatively asserted and prosecuted as such by and on behalf of the State as claimant. 

" Fifth. — That no individual claim for indemnity for the acts set out in the petitions 
existed against Spain, and there is not now nor can there be any individual claim for 
indemnity against the United States for said alleged actsb}- reason of the treaty of peace 
between the United States and Spain of December 10, 1898, or otherwise. 

" Sixth.— That the averments in the petition and documents referred to and made pirts 
thereof, and the history of events prior and subsequent to the destruction of the battle- 
ship Maim clearly shows that the destruction of said vessel was at the time regarded as an 
act of war. 

" Seventh. — That the subject matter, namely, the destruction of the Maine, and all its 
incidents, was finally settled and disposed of before the creation of this Commission : First , 
by the action of the constituted authorities of the United States at Washington and at 
Paris ; Secondly, by the provisions of the act of Congress of March 30, 1S98 : Thirdly, as a 
result of the treaty of peace between Spain and the United States of December 10, 1898.'' 

\ The propositions of the Attorney-General are all referred to and answered in the 
following argument, but as these points were prepared befoie the brief of the Govern- 
ment's counsel was filed, the order of discussion adopted hereiD is somewhat different 
from that adopted by the Attorney-General. 

The Government has also printed and filed as a brief the argument of the counsel 
who closed the case on its behalf, and as that argument and the brief are constructed on 
different lines, it is impossible to answer them both consecutively. 

\ This point is answered in this argument under points sixth and seventh, pages 23 
el seg., post. 

§ This point is answered as to the questions of exterritoriality under the Seventeenth 
Point, pp. 64 el seg., post, and as to the right of sailors to recover indemnity under the Six- 
teenth Point, pp. 52 el seg., post. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 7 

"III. — That the Commission lias no jurisdiction of the subject- 
matter involved.'"* 

The petitioners who have filed claims are sailors and marines, or the 
widows, orphans or mothers of sailors and marines of the United States 
Navy: they are citizens of the United States: they allege that they have, 
or had, claims against Spain which the United States has assumed: they 
have invoked the aid of this Court to obtain an " adjudication " thereof, 
and they submit that the claims are just and within the jurisdiction of 
this Court, whose duty as well as whose right it is to so adjudicate them: 
and they have every confidence that this Court will promptly and 
fearlessly adjudicate the just claims of American citizens, regardless of 
any consequences which may ensue, even to the extent, if it becomes 
unavoidable, id' wounding the sensibilities of a foreign nation. 

The demurrers should lie overruled and in the absence of direct proof 
that Spain was not responsible, directly or indirectly, for the destruction 
of the Maine, judgment should be rendered lor the petitioners to the full 
amount of their claims. In support of (heir position the following points 
are submitted mi behalf of the petitioners.! 

* The jurisdiction of this Court to consider these claims is discussed under the first 
four points, pp. S et seg., post. 

| This printed argument is mainly the substance of the subscribing counsel's oral 
argument before the Spanish Treaty Claims Commission on the demurrers at Washing- 
ton, December 18th, 19th, 20th and 21st, 1901. It lias been somewnat lengthened so as 
to reply to the brief and the argument filed by the Government. 

The argument was heard by the full Commission, consisting of William E. Chandler, 
President, Gerrit E. Diekema, James Perry Wood, William L Chambers and William 
A. Maurv, Commissioners. Argument for the Government was made by Assistants 
Attorney General William K. Fuller and Chas. W. Russell, and Alexander Porter 
Morse, Charles F. Jones and Win. E. Rogers, assistants; and for the claimants in the 
following order: Charles Henry Butler, of New York, and Clifford Walton, Benjamin 
Micciu, W. W. Dudley and Hilary A. Herbert, of Washington. D. C. At the close of the 
argument an order was made permitting the Attorney-General to file a brief within one 
week and the claimants to file briefs within one week thereafter. 



BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 



POINTS. 

i. 

AS TO JURISDICTION OF THE SPANISH 

TREATY-CLAIMS COMMISSION OVER 

THESE CLAIMS. 

FIRST.— The jurisdiction of this Court is lim- 
ited only to the extent that the claims which 
it can "receive, examine and adjudicate," 
must be those of citizens of the United States 
against Spain for injuries arising between 
February 25, 1895, and April 11, 1899, and 
which the United States agreed to assume and 
adjudicate by the Seventh Article of the 
Treaty of Paris. 



The statute of March 2, L901, not only expressly clothed this Court 
with jurisdiction over, hut also made it the duty of the Commission 
to "receive, examine and adjudicate" all such claims of citizens of 
the United States of this nature. The petitioners have brought them- 
selves within the letter and spirit of the statute, as well the evident 
intention of Congress, by alleging in their petitions all the facts necessary 
to bring their claims within the jurisdictional limitations. 

If their allegations are true they have claims against Spain and this 
Court is bound to receive them, examine them, and adjudicate them in 
their favor ; if their allegations are untrue the Court is equally bound 
to receive the claims, examine them, and adjudicate them against the 
claimants and in favor of the United States. 

In fact, the Court already has received the claims, the Attorney- 
General is asking the Court to examine them, and if the claims should 
be dismissed for any cause it would necessarily be an adjudication by 
this Couit. 

The Attorney-General declares that it is beyond the power of this 
Court to adjudicate these claims, because it was contrary to the intention 
of the Peace Commissioners who made the treaty to assume these claims, 
and also because it was contrary to the intention of Congress in passing 
the statute creating this Court, to confer such jurisdiction upon it. There 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 9 

is nothing either in the treat}', or in the statute, to indicate that such 
were the intentions of the makers of one, or of the enactors of the other. 
The terms used are general enough to include all claims which could 
in any way be advanced by citizens of the United States for claims 
which they allege are amongst those assumed by the United States by 
Article VII. of the treaty anil which arose between the specified dates, 
and they are specific enough to exclude all those which do not come 
within those conditions. If the claims arose between the specified dates, 
and ever existed, or if the petitioners allege that they so arose and existed, 
and the petitioners are citizens, any decision of this Court that the 
claims have been discharged or obliterated by the treaty of peace must 
be made necessarily after reception, examination and adjudication, and 
therefore is within the jurisdiction of the Court. 

The Attorney-General's position is inconsistent. On the one hand, he 
asks the Court to hold that it has no jurisdiction over these claims, and 
on the other, he asks it to adjudge that they have been obliterated by 
the treaty of peace. To sustain his position, he cites authorities on 
international law as to the effect of the treaty of peace, which are wholly 
inapplicable to these cases ; they will be discussed under subsequent 
points on the merits of the demurrers. This and the three following 
points will be confined to the question of jurisdiction of this Court. 
Iu this respect the petitioners contend (a) they have alleged in their 
petition every fact necessary to confer jurisdiction and (fo) that the ques- 
tion of Spain's responsibility being a question of fact cannot be raised on 
demurrer as it. requires a direct denial of facts alleged in the petition to 
controvert it. 

A. Every fact necessary to confer jurisdiction has been alleged 
in the petition. 

The Spanish Treaty Claims Commission is a court of limited juris- 
diction only in the sense that the suitors before it, and the controversies 
adjudicated by it, must be those referred to in the act of March 2, 1901. 

Otherwise than this the jurisdiction of the Commission as a court is 
complete, and its power to examine and adjudicate the claims referred to 
it is even more extensive than the statutory and constitutional courts of 
this country, as it is not limited by the statute, or by the common, law; 
it is expressly provided that claims are to be received, examined and ad- 
judicated according to their merits, and the principles of equity and of 
international law. 

The Attorney-General, in the brief submitted by him on the prelimi- 
nary objections raised by the claimants to his motions to dismiss these 
cases, has defined the jurisdiction of this Court, and while the claimants 
do not admit that his statement is in all respects correct, it will be ad- 
mitted, for the purpose of this argument, so as to save discussion and 



10 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

reduce it to the narrowest limits possible, as he has undoubtedly stated 
the rules as favorably as he possibly could for the Government.* 

He must admit, of course, the converse of his own proposition, which 
must be accepted by this Commission as a statement that its jurisdiction 
is complete to receive, examine and adjudicate claims, whenever (1) the 
subject matter is an existing claim for indemnity against Spain, which 
has not been heretofore diplomatically, judicially or otherwise disposed 
of by competent authority and is not contractual in its nature, by 
claimants (2) who are citizens of the United States, and were so at the 
time of the acts complained of, which (3) occurred between February 
25, 1895, and April 11, 1899, in (4) the island of Cuba. 

The abstract of the petitions in the statement (ante, p. 2) shows that 
the claimants have brought themselves within every jurisdictional condi- 
tion prescribed by the Attorney-General ; the claimants are citizens of 
the United States ; they were such at the time of the acts complained of, 
which took place in Havana, Cuba, on February 15, 1898, within the 
time specified in the treaty. As those allegations must, on the argument 
of these demurrers, be taken as true, they dispose of the second, third 
and fourth sub-divisions of the Attorney-General's statement as to juris- 
diction. The jurisdiction of this Court over these claims is therefore 
admitted unless it appears from the petitions themselves that the subject 
matter is not " existing claims for indemnity against Spain which have 
not heretofore been diplomatically, judicially or otherwise disposed of by 
competent authority;" it is, of course, apparent from the petitions that 
the claims as against Spain are not contractual in their nature. 

B. The question of the responsibility of Spain for the acts com- 
plained of cannot be raised on these demurrers as the petitions 
sufficiently allege negligence as a traversible fact, and a general 



* On page 1 of the brief referred to he says : 

" The jurisdiction is special and limited in respect of (1) subj 'eel-mailer, (2) parlies, (3) 
time, and (4) territory. 

" First. The subject-matter : The only claims which the Commission is authorized to 
' receive, examine, and adjudicate' are claims for indemnity — existing claims for indem- 
nity which were primarily against Spain, and which have not been heretofore diplomatic- 
ally, judicially, or otherwise disposed of by competent authority. Contractual claims arc 
not within its jurisdiction. 

" Second. The parties: The parties must have been citizens of the United States at 
the time of the acts complained of. 

" Third. The time: The time when the claims originated must be a period between 
the 25th day of February, 1895, and the 11th of April, 1899. 

" Fourth. The territory : The territory in which the claims originated must be the 
island of Cuba. 

" All these conditions must be fulfilled and must appear affirmatively in the petition 
before the Commission can entertain jurisdiction of the alleged claims." (Treaty of Paris, 
Article VII; act of March 2, 1901 ; Rules of the Commission.) 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 11 

allegation, without stating the particulars showing the negli- 
gence, is sufficient as against a demurrer for insufficiency. 

This is such an elementary principle of law that it is hardly necessary 
to cite any authorities; a few, however, are referred to.* 

This point, however, is also disposed of by the statement of the 
Attorney-General, which appears in his brief on these demurrers, filed 
December 1st, that the destruction of the Maine was the cause of the 
recent war with Spain. The claimants do not admit that the destruction 
of the Maine was the cause of the war, but as the Attorney-General has so 
alleged it, he must be bound thereby, and it is not to be presumed that the 
cause of a war declared by the United States against another power was an 
act for which the foreign Government was not responsible. The fact that 
the political departments of the Government have declared that the ab- 
horrent conditions in Cuba had culminated in the destruction of the 
Maine, eliminates the question of Spain's responsibility for the destruc- 
tion of that vessel from these cases forever, no matter what the decision 
of the Court may be on these demurrers. 

The single point, therefore, on which there can be any discussion as 
to jurisdiction of this Court to entertain these claims is as to the subject 
matter thereof. In that respect the petitions show that the claims are for 
damages occasioned by a tortious act committed by, or as the result of 
the negligence of, Spain; that allegation is sufficient in itself to confer 
not only jurisdiction upon, but also to make it the duty of, this Court to 
receive, examine and adjudicate these claims. 



SECOND.— It is the duty of this Court to take 
jurisdiction of these claims and adjudicate 
them, as much for the benefit of the United 
States as for the claimants, and the intention 
of Congress that the Commission should exer 

*Harper vs. Norfolk d- W. R. R. Co., 36 Fed. Rep., 102; 
Mobile & M. R. Co. vs. Crenshaw, 65 Ala., 566, 
and many other cases cited in Abbott's Trial Brief on the Pleadings, page '259. And a 
general allegation of negligence is equivalent to whatever degree of negligence is necessary 
to sustain the pleading, 

Nollon vs. Western R. R. Co., 15 N. Y., 444. 

Rock/ord, &c, R. R. Co. vs. Phillips, 66 111., 551. 

" The rule is well nigh universal that in an action for negligence the plaintiff need 
not set out in detail the specific acts constituting the negligence complained of, as this 
would be pleading the evidence. A general averment of negligence in the particular act 
complained of resulting in damages is good, at least as against a general demurrer." 
Enc. of Pleading & Practice, vol. 14, pp. 333-4, citing numerous cases. 



12 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

cise jurisdiction over all claims properly- 
presented by verified petition is evidenced 
by the act itself. 

The act of March 2, 1901, shows on its face that it was the intention 
of Congress to provide a court which should receive, examine and adjudi- 
cate the claims of all persons who should tile petitions in accordance 
therewith, as the petitioners have done, alleging claims against Spain; 
it also shows that it was the intention of Congress that the Court should 
determine whether all claimants who should assert they bad claims by 
filing verified petitions had or had not valid claims against Spain which 
had been assumed by the United States under the Treaty of 1898, and 
that the jurisdiction of the Court so created should be wide enough to 
enable it to receive, examine, adjudicate and finally dispose of every claim 
which should thus be brought before if. It must be remembered in this 
respect, that it is only by this Court's assuming jurisdiction and re- 
ceiving, examining and adjudicating claims that the United States can 
be finally relieved, by the judgment of a court of competent jurisdiction, 
from liability for claims which do not exist. It would certainly defeat 
the purpose of Congress if this Court should decline to adjudi- 
cate claims brought before it for want of jurisdiction, as such dis- 
posal of claims presented would not be a determination which would re- 
lieve the United States of liability for such claims, and should thus 
leave them not only undetermined by this court, but undeterminable by 
any Court, as no other tribunal has any jurisdiction over them. It 
is, therefore, the duty of this Court to take jurisdiction of these claims; 
the proper method for the United States is to defend all claims for 
which, in the opinion of the Attorney-General, it is not liable, or which 
have been in some manner settled, either by answer or demurrer setting 
up the actual defenses in fact or in law thereto and thus, if successful, 
obtaining a final judgment on the merits of this Court to the effect 
that such claims are not meritorious and that the United States is not 
liable therefor. Such an adjudication would be beneficial to the United 
States, for it would actually be the judgment of a Court of competent 
jurisdiction: and would relieve Congress of all moral obligation to pro- 
vide for such claimants. On the other hand a refusal to adjudicate 
on the ground that the Court does not possess the jurisdiction to do so, 
would throw back upon Congress the question of providing some other 
method of ascertaining the justice of the claims dismissed, notwith- 
standing the fact that this court exists for the very purpose of ascertaining 
what claims exist. 

The benefits of the act must be mutual. The United States cannot 
obtain the benefit of the act and have the non-existence of claims de- 
termined without giving the claimants an equal opportunity of having a 
complete adjudication upon the merits of their claims. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 13 



THIRD.— Commissions and Courts similarly 
constituted, and possessing similar jurisdic- 
tion, have always considered their jurisdic- 
tion wide enough to embrace all claims arising- 
out of, or in any way connected with, the mat- 
ters referred to in the organic act or treaty. 

The extent of the jurisdiction of tribunals of this nature has fre- 
quently been the subject of discussion, and the jurisdiction has always 
been sustained as being co-extensive with any claim which could possibly 
have been included in the general terms used.* 

The construction of a treaty clause referring to all claims of citizens 
of the United States against a foreign government and limited only 
as to time of their inception, and the ownership thereof by citizens of 
the United States, was the subjectof a decision by the Venezuela Claims 
Commission of 1889. 

That such Commission did not unduly extend its own jurisdiction is 
evidenced by the dismissal of twelve claims, of which three were dis- 
allowed on motion of the claimants, four for want of jurisdiction and five 
without prejudice to their presentation elsewhere. The commission was 
composed of John Little, of Xenia, Ohio, I'm- the United States, Jose 
Andrade for Venezuela, and at first Mr. Samuel F. Phillips as third Com- 
missioner, agreed upon by the arbitrators, and after his resignation Mr. 
John V. L. Finlay, of Baltimore, Md., who was selected by the rep- 
resentatives of the two countries to succeed Mr. Phillips. 

The Conventions of December 5. 1885, and March 15, 1888, provided 
for the settlement of claims between Venezuela and the United States, 
and by article II "all claims on the part of corporations, companies, or 
individuals, citizens of the United States, upon the Government of 
Venezuela, which may have been presented to their Government or to 
its legation at Caracas, before the 1st day of August, 1868, and which 
by the terms of the aforesaid Convention of April -.'.J. 1866, were proper 
to be presented to the mixed commiss : on organized under said Conven- 
tion shall be submitted to a new Commission." 

To this commission there was presented the claim of W. H. A spin- 
wall & Co. for certain bonds of the Government of Venezuela, and the 



*" A court of limited jurisdiction is therefore not necessarily an inferior court in its 
technical sense, and it is said that those created by express constitutional enactments, 
with general and exclusive powers to hear and determine all controversies within their 
particular judicial sphere, cannot be said to be courts of limited or special jurisdiction 
within the meaning of the rule as to presumptions." 

12 Encyc. of I'l. and Pr., 159-161, and see numerous cases cited in the notes, 
especially Den vs. Hammel, 18 N. J. L., 78. 



14 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

question was raised as to whether or not the Commission had jurisdiction* 
of such a subject. A similar question had arisen under the Convention 
of 1857, between the United States and New Granada, in which it was 
held that bonds of New Granada were not claims within the terms of the 
Convention, and therefore not within the jurisdiction of that Com- 
mission, f 

Mr. Little delivered the opinion for the Venezuela Commission in 
which a majority united, and it is therefore the official utterance of the 
Commission.;): The thirty-five pages of opinions in this case read as 
though they were written expressly for the cases at bar. 

The decision in the New Granada case is discussed sentence by sen- 
tence, and the fallacies upon which it was based exposed and refuted. 

The definition of the word " claims " under municipal and interna- 
tional law, and the proper interpretation of the words "all claims which 
arose before a specified time," is discussed and authorities upon inter- 
national law are cited as to their meaning and effects 

On page 3031 the clause as it actually existed in the convention was 
placed in a parallel column with the clause as it would be interpreted 
by those who assailed the jurisdiction of the Commission, and the 
opinion says in regard to the two clauses : "It would be a bold declara- 
tion to assert their substantial sameness. Had it been the intention 
thus to limit the claims in character, it is difficult to understand why 
language to that end was not used as had been done before, as seen, and 
by the same parties, in convention with other powers." In fact, the 
opinion holds that where a convention used the words "all claims," 
which were held by citizens of the United States and which were 
limited in any way by time of their origin, that it made no differ- 
ence whether the claims were contractual or tortious, but that their 
ownership as to citizenship and the time of their origin were the only 
questions which the Commissioners could consider and that they were 
bound to assume jurisdiction of all claims, regardless of their character. 

The opinion refers to certain cases under the Mexican Commission of 
1868, in which Sir Edward Thornton, as umpire, excluded certain cases 
from the consideration of that Commission, on the ground of their char- 
acter, || but the distinction between these cases and the ones under 
present consideration is seen at once by an examination of the treaty, 

* This question is discussed here only from a jurisdictional point. It is again referred 
to as it affects the merits under the Eighteenth and Nineteenth Points, pp. 67 el seq.,post. 

\ Moore's Arbitration, vol. 4, pp. 3616 el scij. 

J Moore's Arbitration, vol. 4, pp. 3616-3642 ; Mr. Finlay concurred, Id., 3642-3651. 

§ Mr. Justice Story in Prigg vs. Penna. (16 Pet., 515); Lord Chief Justice Cockburn 
in Queen vs. The Guardians (9 L. Q. B , 395); Circuit Judge Deady in Howell vs. Cordwell 
(4 Sawyer, 228); Chief Justice Marshall in The Nereide (9 Cr., 419), and many other 
authorities. 

|| Moore's Arbitration, vol. 4, p. 3628. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 



15 



for the character of the claims referred by the Convention was expressly 
stated as those "arising from injuries to their persons or property, 
and it is evident from the language itself that claims arising ex contractu 
would not be embraced in that description.* 

When the jurisdiction of the Mexican Claims Commission of 1839 
was the subject of discussion and the question was raised whether it 
could take cognizance of certain cases, Mr. Webster's opinion, as the 
same is reported in Professor Moore's account of the proceedings of the 
Commission, was that the estent of jurisdiction must be determined by 
the Commission itself and could be exceedingly b road. f 

* On page 3625, after citing United States vs. Dickson (15 Peters, 165) and Hinu vs. 
United States [Id., 415), Mr. Little uses the following words peculiarly applicable to the 
construction of the relinquishment and assumption clauses of Article VII. of Hie treaty o< 
Paris, and the jurisdiction of this Court over all claims which were not affected by the 
limitations of time and citizenship: 

" Almost in the language of the court it can be said: The office of the qualifying 
words relative to ' claims ' in the treaty is to except demands from the general terms ' all 
claims' and to qualify and restrain their generality. And it would seem to be of little 
moment in what form those qualifying words were put, whether in that of a proviso or 
in that in which they stand. The principle of construction would be the same— that 
being that the qualifying words are, while the general terms of submission are not, to be 
taken in a restrictive sense, if there is to be any distinction. 

"The comprehensive term 'claims 'is the one always employed in similar claims 
treaties, though sometimes with a synonym— or as near that as the language affords— and 
is always accompanied with words of restriction. The restriction relates to ownership, time, 
origin, character, or circumstance, or to several of these. Under the convention between 
the United States and Ecuador (\b6i) ownership was the only qualification. It was com- 
petent to present any claim before the commission against either State, provided it oe- 
longed to a citizen of the other. In the treaty of 1S34, between the United States aid 
Spain, a single circumstance determined admissibility, to wit, that the claim had been 
' preferred by either party against the other.' Usually several of the elements are em- 
braced in the terms of qualification. The treaty of 1795, between the powers last men. 
tioned, comprehended in them ownership, time, and character. The claims for adjustment 
there were for losses sustained by citizens of the United States in consequence of their 
vessels and cargoes having been taken by the subjects of His Catholic Majesty during tht 
toe war between Spain and France' In 1S32 the United States and the two Sicilies 
treated for an indemnity to be paid by the latter to American merchants ' for losses in- 
flicted upon them by Murat by the depredations, seizures, confiscations, and destruction of 
their vessels and cargoes in the years 1809, 1810, 1811, and 1812.' Here are the elements 
of ownership, time, origin, and character. All the five (dements named are embraced in 
the qualifying terms of the 'Alabama claims' treaty of 1871. It is unnecessary to par- 
ticularize or to illustrate further. But attention may be directed still to two conventions 
under this head, that of 1802 between the United States and Spain, embracing the qual- 
ifying elements of time, ownership, and character, and that of 1864 between France and 
the Republic of Venezuela, comprehending the two latter only." 

\ 2 Moore's Int. Arbitration, pp. 1241, 1242: 

"On several occasions, while the board was in session. Mr. Webster was appealed to 
in respect of some matter on which it had assumed to act. In all such cases he consist- 
ently maintained the position that it was an independent body, in whose proceedings it 
would be manifestly improper and unwarrantable for the Executive to intervene— a posi- 
tion eminently sound in law and wise in practice. 

"November 12, 1S41, the American commissioners inquired of Mr. Webster whether 



16 I1EF0RE THE SPANISH TREATY CLAIMS COMMISSION. 

The mixed Commission organized under Articles VI. and VII. of the 
treaty between the United States and Great Britain, divided on the ques- 
tion of jurisdiction, the American members, however, sustaining the 
jurisdiction of the Commission, Mr. Christopher Gore and Mr. Pinkney, 
both writing opinions.* 

certain claims had, as the Mexican commissioners contended, been withdrawn from the 
cognizance of the board. December 23, Mr. Webster in reply inclosed an extract from an 
instruction of Mr. Forsyth to Mr. Ellis, minister to Mexico, of May 3, 1839, and a copy of 
the note of the latter to the Mexican minister for foreign affairs of November 6, 1839, and 
stated that, as the execution of the convention was by the convention itself and the act of 
Congress confided exclusively to the commissioners, it was not considered to be the prov- 
ince of the Department of State to express an opinion on the point. The eases in question 
involved the acts of various Mexican officials, such as the seizure on the high seas of the 
American schooner Topaz and the killing of her captain and crew. In some of the cases the 
dismissal of an officer was demanded, in others a reprimand, and in others yet an infliction of 
punishment, and in at least one instance an assurance was asked for that no disrespect to 
the Hag of the United States was intended. In bringing these several matters to the at- 
tention of the Mexican Government, Mr. Ellis had declared that they were ' not embraced 
in the convention signed * * * on the 11th of April last/ Under these circum- 
stances the Mexican commissi >ners, on January 16, 1842, formally inquired of Mr. Web- 
ster whether the reservation made by Mr. Ellis ' positively excluded the personal inter- 
est ' in the cases, and whether ' there only remain to be arranged between the two 
governments the subjects which relate to their flag, their honor, and their prerogatives.' 
Mr. Webster, on the 21st of January, answered that while it was not ' the province of 
the Executive of the United States to express an opinion upon the business which the 
convention has confided to the board of commissioners,' yet he would add, for the pur- 
pose of information, that ' if all claims of citizens of the United States involved in the 
case of the schooner Topaz, or in any other cases embraced by the first article of the 
convention, shall be considered and disposed of by the board according to the terms of 
the convention, it is certain that this government will not deem them a subject for any- 
further negotiation with that of the Mexican republic' 'The mixed commission 
under the convention with that republic,' said Mr. Webster, ' has always been 
considered by this government essentially a judicial tribunal, with independent 
attributes and powers in regard to its peculiar functions. Its right and duty, 
therefore, like those of ether judicial bodies, are to determine upon the nature and extent 
of its own jurisdiction, as well as to consider and decide upon the merits of the claims 
which might be laid before it.' On this statement the personal claims in question were 
held by the board to be within its jurisdiction, and were duly examined. 

" The same position was maintained by Mr. Webster in other cases. On June 21, 1841, 
one of the claimants, named Santangelo, requested him to direct the diplomatic represen- 
tative of the United States in Mexico to ask the government for certain papers which the 
commission had on an equal division refused to demand. Mr. Webster declined to grant 
the request, saying that the functions of the Department of State in relation to the claims 
were 'expresbly limited by the convention to the transmission to the board of commis- 
sioners of such documents as the Department may receive.' Subsequently, when the 
request was renewed, he declared that the Executive of the United States had 'no right 
to interfere for the redress of our citizens who may suppose themselves to have been 
aggrieved by decisions of the commissioners under the convention with the Mexican 
republic. That body is, in effect, a judicial body, and it belongs to its members alone to 
determine the rights of claimants under the convention.' " 

* Moore's International Arbitration, Vol. 3, pp. 2277 et seq., Mr. Gore says : " When 
a complaint is brought before the Commissioners, the Board must take for granted that it 



ARGUMENT OF ('HAS. [I. RUTLEB IN MAINE CASES. 1? 

On the fourth day of the argument of the demurrers the President 
of the Commission asked the counsel of the claimants it they would 
"furnish reference to all cases in which a claim of an ambassador, for- 
eign minister, soldier or sailor, for damages or injury received in the 
line of duty has been presented to any international or domestic tri- 
bunal authorized to adjudicate individual claims only." 

The Attorney-General is attempting to divest this Court of juris- 
diction over the claims of citizens because they wore the uniform of the 
United states. 'I'n counsel tor the claimants it seems as though the 
question of the President of the Commission should have been directed 
not to the counsel for the claimants asking them to find cases in which 
jurisdiction has been taken, but the counsel for the Government should 
have been asked to furnish references in which jurisdiction had been de- 
clined on account of the relations of the claimants to the Government. 
Counsel for the Government has not furnished a single reference in 
which any tribunal or court, international or domestic, has refused to 
allow a claim on the ground that the claimant occupied a civil or mili- 
tary position under Government. While there have been a number of 
such eases, there have been many other cases in which the claim has 
been made by one Government against another and there lias been no 
necessity of referring the matter to a tribunal, as it has been settled 
diplomatically by the offending Government acknowledging its liability 
and making proper reparation.* In such eases the claim has been 
regarded by both Governments as an individual claim, as the indemnity 
has been paid over directly to the individual sustaining the loss. 

Some of the cases in which international tribunals and domestic com- 
missions have adjudicated claims of this nature are' those of: Crew of 
the General Armstrong against Portugal ;\ Hire againsl Mexico;\ Mc- 

is within their competency or reler it to some other tribunal to determine the question." 
Subsequently, when the English Commissioners withdrew, Mr. Gore tiled an opinion in 
which he declared that "To refrain from acting when our duty calls us to act is as wrong 
as to act where we have not authority " (Moore, 2290). 

* See cases of Baltimore (U. S. vs. Chili); Chesapeake (U. S. vs. Great Britain); General 
Armstrong (U. S. rs. Portugal i; Atlaehe Huesken (I". S. vs. Japan); Water Witch (I' S. vs. 
Paraguay); Sailors of the Corvette Duplies (France vs. Japan); Col. Margery (Great Britain 
- i hina), and "Her cases cited under the Sixteenth Point, pp. :>■! et seg., post. 

t The Crew of the General Armstrong. This case is cited later under 
other points. It is referred to here only in answer to the Commissioner's question as an 
instance in which the individual claims of sailors on a privateer which was duly commis- 
sioned by the United Slates were submitted to arbitration. Although it. was held by the 
arbitrator that the foreign country was not liable for indemnity, the question of jurisdic- 
tion was not raised and the United States itself presented to an international arbitration 
claims of its citizen-, who as sailors on a commissioned privateer had actually received 
from the I nited States im ize money for their gallant conduct in the battle ol Fayal. The 
claim was advanced against the neutral nation for injuring nun who at the time were limit- 
ing against a declared enemy of the United States. 

X Bice's ease; in which |4,000 was awarded by the Mexican Treaty of July 4, 
1898, to a United States Consul for unlawful arrest, and from the opinion it would appear 
that it was exclusively for sixty hours' detention (1 Moore's Int. Arli,, :>248). 



18 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

Keown against United Mates:* the U. S. Consuls in Mexico against 
Mexico ; \ Ulrich against Mexico. \ 

These few cases are cited not because they are analogous as to facts or 
merits to the claims at bar, but simply to show that no doubt has ever 
been expressed as to the right of international or domestic tribunals to 
take jurisdiction of claims against foreign governments because the 
claimant held fiduciary or military positions under the Government, or 
that such fact in any way affected his claim if a similar claim would 
have been allowed to a citizen who did not represent his Government in 
any capacity whatever. 



FOURTH.— The burden of sustaining- a de- 
murrer for -want of jurisdiction in cases of 
this nature is upon the moving party, and all 
the presumptions are in favor of the peti- 
tioners. 

This Commission is the only Court which has jurisdiction of claims 
of this nature, and if it should decline to take jurisdiction and sustain 
these demurrers the petitioners will be absolutely remediless and unable to 
prove their claims before any court ; they would rind themselves deprived 
of the remedy which Congress has given to all persons having chums 
against Spain, notwithstanding the fact that they have alleged their 
claims in the manner required by statute, and no fact stated in their 
petitions has been in any way controverted or denied. 

The presumptions in cases of this nature must be in favor of the cit- 
izens whose claims have been taken for the public good, and whose only 
opportunity for compensation is to be found within this forum. 

* Mclieown's case ; a shipearpenler in the service of the United States Govern- 
ment during the Civil War was arrested by his commanding officer and subsequently dis- 
charged after a confinement of thirteen days ; he was a British subject, and alter the war 
presented a claim to the mixed commission at Washington under the treaty of 18. 1 and 
obtained an award for $1,467 against the United States (Moore's Int. Arb., 3211, and see 
other cases referred to in note on same page). 

t TJ. S. Consuls ill Mexico. Before war was declared between the United 
States and Mexico, consuls and vice-consuls of the United States were ordered to cease 
their functions. There were a number of American citizens expelled: consuls filed their 
claims before the Commission for damages by reason of this order, and the consuls' claims 
were held to be valid by the Commission of 1851 to adjudicate claims of its citizens 
against Mexico assumed by the United States under the treaty of 1848 (4 Moore's Int. 
Arb., 3336). 

\ Ulricll's case was a claim against the Mexican Minister, and was allowed by the 
Mexican Commission of 1851, which adjudicated claims against Mexico belonging to 
citizens of the United States assumed by the United States under the treaty of 1848 (4 
Moore's Int. Arb., 3434). 



ARGUMENT OF CHAS. H. BUTLEIl IN MAINE CASES. 19 

The presumption must also exist that Congress did not intend to pro- 
vide a tribunal of this nature, which should not have a jurisdiction 
extensive enough to cover all claims which would be presented to them. 

To this extent the demurrer and motion to dismiss are practically the 
same, and subject to the same rules of pleading and practice.* 

Tin's Court was created solely to assist Congress in appropriating 
money to discharge the obligations assumed by the treaty of L898. It- 
was not necessary to have any Court. Congress could have referred 
all claims of every nature whatever to Committees of its own body, and 
no questions of jurisdiction could have arisen. Had Congress seen til to 
do so, it could have appropriated the money to pay the claims without 
any adjudication by this Court or examination by any committee. It 
has, however, become the regular rule, and very properly so, for special 
courts to be created so as to relieve Congress from the necessity 
of investigating claims of this nature, which interfere with the 
legislative duties of its members, and also so that Congress may be 
assured of the justice and legality of the claims, and thus be enabled to 
appropriate money for the payment of all just, claims, and not to lie sub- 
jected to demands of petitioners for the payment of claims without 
foundation. 

In fact, this Court simply acts as the conscience of Congress to guide 
it in making appropriations. Congress expressed by the enactment of 
the statute of March -J. 1901, the wish to be informed of all claims as- 
sumedby the United States under Article VII. of the treaty, and created 
this Court for that purpose. This Court cannot pay the claims which it 
adjudicates favorably to the claimant; Congress must appropriate the 
money therefor. Congress wishes to be as fully informed in regard to 
alleged claims which were not assumed by the United Slates as it does in 
regard to those which were assumed. 

• " A motion to terminate a suit against the will of the plaintiff can generally be 
made only by a party to the proceeding- and the burden lies upon bim to see that all the 
proceedings authorizing such a termination are substantially complied with." 
6 Encycl. of Pleading and Practice, 875, under Dismissal. 
"A motion to dismiss (or lack of jurisdiction is appropriate only where the defect 
appears on the face of the record. More correct practice requires the objection to be 
taken by answer or demurrer, or by a rule to show cause." 

6 Encycl. of Pleading and Practice, 887, under Dismissal. 
The motion is to be determined on inspection of the bill only ; the Court is nut 
authorized to consider the answer and proof. 

/'/., p. 892, and numerous cases cited and notes on p. S76. 
Bent vs. Bent, 43 Vermont, 44. 
Bliss vs. Smith, 42 Vermont, 198. 
M«nre vs. Helms, 74 Ala., 368. 
Jewell vs. Lamoreavx, 30 Mich., 136. 
Holloway vs. Freeman, 22 111., 197, at p. 2nl. 
" A bill is demurrable if want of jurisdiction appears «/<"« the hue thereof, otherwise 
a plea is proper." 

Stephenson vs. Zlaiis, 60 Maine, 75. 

I 



20 BEFORE THE SPANISH TKEATT CLAIMS COMMISSION. 

The presumptions must be that Congress having covered every class 
of claimants when it used the word all, it cannot be presumed that 
in creating this Court and giving it jurisdiction, and also making it 
its duty, to " receive, examine and adjudicate all claims," it expressly 
excepted a single class of claimants whose claims are of the most im- 
portant character, and are certainly the most entitled to the consideration 
of national sympathy and national indemnity of all the claims presented 
to this Commission.* 



II. 

AS TO THE MERITS OF THE DEMURRERS. 

FIFTH. The claims of the petitioners should 
be allowed by this Court " on their merits and 
on the principles of equity and of international 
law." 

The argument thus far has referred only to questions of jurisdiction. 
Assuming that the Court will take jurisdiction, even if motions were 
properlv before the Court in those respects, the demurrers should be 
overruled on the merits. 

When, on March 2, 1901. CongTess created this Court, it well knew 
that according to the strict rules of the common law and of statutory 
construction, claims might be presented to it for adjudication which 
could not be allowed unless the Court found that the United States was 
bound in good conscience to indemnify the claimants for claims in ac- 
cordance with precedents of mternational law and conduct between 
nations under similar conditions, and it accordingly clothed the Court 
with jurisdiction to adjudicate the claims according to their merits and 
the principles of equity and of international law. 

1. There cau be no doubt as to the merits of the claims, as upon the 
demurrers it is necessarily admitted that the claimants are citizens: that 
thev sustained the damage complained of; and that such damages were 
caused bv the negligence or wrongdoing of the Spanish Government: 
the question of amount is, of course, not now before the Court. 

■2. The claimants are entitled on "the principles of equity " to 
recover from the United States whatever the United States .uld have 
demanded on their behalf from Spain at the time that the treaty was 
made. The claimants were not present. The Commissioners appointed 
bv the United States to negotiate the treaty, however, represented them, 
and it is not to be presumed that Commissioners appointed by the Presi- 
dent to arrange terms of peace with a conquered foe would either 

* The first section of the Act of March i. 1901, creating this Court, is qnoted on 
page 3 of this brief, aide. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 21 

forget to iuclude or intentionally omit any claims which could have been 
presented had there been no war, and the negotiations related not to a 
treaty of peace but solely to the settlement of claims. 

Peace is the highest object sought in the conclusion of treaties, and. 
therefore, the rights of individuals must give way for the sake of 
national peace: but the Government, in making peace for the good of 
the nation, must not and will not. forget the individual rights "i its 
citizens. Congress unquestionably intended, in especially including the 
principles of equity as a basis for the adjudication of these claims, that 
the claimants should have the benefit of every presumption to which 
they could possibly be entitled, and which under stricter rules of law 
they might not be able to invoke. 

3. On " the principles of international law," the United States 

could have demanded indemnity for these claimants from Spain: and 

this Court must allow such as are similar to those which have heretofore 

been made the basis of international demands and payments, as such 

dents are the only guides for their decisions. 

Ir was argued by counsel for the Government, and is also stated in 
their brief, that the precedents cited by claimants are not binding upon 
this Court. But this cannot be sustained, for it lias frequently been 
decided by the Supreme Court of the United States that international 
law has always been recognized as a part of the law of the United Mates: 
that it is for the Court to determine what principles and rules have 
actually become incorporated into our law. and which of them are 
applicable to the case before it: and not only must decisions of our own 
Courts be followed, lint decisions of courts of other countries and the 
actions of this and other Governments under similar circumstances must 
- - .uides and precedents: that in the absence of any treaty 
stipulation, statute or accepted provision of law. it is the duty of the 
Courts to follow such precedents as by direct application, or by analogy, 
can guide the Court to a correct decision.* 

Counsel for the Government in their arguments and briefs maintain 
that the demand for indemnity ou behalf of a sailor when killed or ill 
treated in a foreign country has been purely a national matter, and one 

• In the Paguelte Habana, U. S. Sup. Ct., 1900, 175 V. S., 677, Gray, J., says (p : 
'■ For this purpose, where there is no treaty, and no controlling executive or legislative act 
or judicial decision, resort mus>t he hud to customs and usages of civilized nations ; and as 
evidence of these, to the works of jurists and commentators, who, by years of labor, re- 
search and experience, have made themselves peculiarly well acquainted with the subjects 
of which they treat." 

See, also, as to international law being a part of the law of the land, 

Hilton vs. G -.-.■ - ■:, 159 U S., 113, Gtiv, ./. 

Fremont vs. United State*, U. S. Snp. Ct., IT II iward, ."142. A47. 

The Scotia, U. S. Sup. Ct., 14 Wallace. 170, 188. 

ReapMica ve. DeLongchamp. Sap Cl . Penna., 1 Dallas, 111, 116. 

Moultrie vs. Hunt, X. Y. Court of Appeals, 23 >". V., 394, 396. 



22 BEFORE THE SPAXISH TREATY CLAIMS COMMISSION. 

which the Government would or would uot make according to its own 
inclination, and that the fact that demands have been made and collected 
does not necessarily oblige this Court to hold that the Government was 
obliged to make such claims on behalf of those who suffered by the 
Maine, and that if such obligation did not exist against this Govern- 
ment to make the demand on Spain, no obligation now exists against it 
to pay the claim after Spain has been released therefrom. 

If this proposition is correct it practically relieves this Court of its 
jurisdiction over nearly every other claim which has been filed; the same 
rnle would equally apply to all claims of whatsoever nature, for formal 
demand had not been made prior to the declaration of war. Claims of 
citizens of one country against the Government of another are, as to cer- 
tain features, always national, and it is also optional with a Government, 
to a certain extent, to determine whether it will, or will not, assert the 
claim. It is sometimes inadvisable to do so for political reasons; sometimes 
the weakness of the State whose citizens have suffered injury prevents their 
claims from being asserted with the vigor necessary to enforce them. 
The question in these cases, however, for this Court to determine, is what 
the Government could have done in regard to these claims when the 
Treaty uf Paris was negotiated. The Government cannot now ask this 
Court to relieve it from any claim or class of claims by asserting that 
it failed to present the claims properly or that possibly it might under 
certain circumstances have declined to present them. 

If this Court finds that on any previous occasions, be they few or many. 
the United States demanded and collected indemnity from foreigu nations 
for claims similar to those here presented, which it has paid over to indi- 
viduals similarly situated to these claimants, then it is bound under the 
statute which requires it to adjudicate these cases on principles of equity 
and of international law, to make their award in favor of the claimants. 

That the United States has made such demands, collected such in- 
demnity, and so applied the amount is beyond question. See cases of the 
Baltimore, Wyoming, Water Witch, Virginius, General Armstrong, At- 
tache HuesJcin, and other cases cited under other points.* 

Counsel for the Government in their brief advance the proposition 
that in the Baltimore. Water Witch and other cases the Government of 
its own motion demanded the indemnity and was not requested to do 
so by the sufferers themselves, and claimed that for this reason it can- 
not be asserted that a claim existed. In fact, they practically claim 
that because on some occasions the United States has voluntarily 
asserted claims of this nature that other persons who were entitled 
thereto cannot as a matter of right assert claims which have similarly 
arisen. Certainly a proposition of that nature does not need auy argu- 
ment to review it. The fact, however, as stated in another point, f that 
the United States formally, through the President, Secretary of State 

* See Sixteenth Point, pp 52 ei seq., pent. 
f See Nineteenth Point, pp. 75 et seq., post. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 23 

and Minister Woodford, asserted to Spain that it would expect Spain 
to make such reparation as one civilized nation should make to another, 
and this statement relieved the claimants themselves from any necessity 
whatever of presenting these claims to Spain or asking their Government 
to take them up.* 



SIXTH.— The Attorney General's proposition 
that the destruction of the Maine was the 
cause of the -war is correct only so far as it 
places the responsibility of that act on Spain, 
otherwise it is untenable. 

Tie Attorney-General based the motions to dismiss chiefly upon a 
proposition which he still adheres to as the basis for the demurrers, 
and which consists of four elements, two of which are distinct state- 
ments of fact and two of which are conclusions of law, as follows- (1) 
Spain was responsible for the destruction of the Maine; (2) such destruc- 
tion was the cause of the war : (3) the treaty of peace obliterated all claims 
for matters causing the war and therefore claims arising from the de- 
struction of the Maine "passed into oblivion " and were not amongst the 
claims of its citizens against Spain which the United States assumed by 
Article VII. of the Treaty of 1893; (4) that such obliteration of the 
claims of the United States and its citizens relieved the United States 
from compensating its own citizens whose claims were thus obliterated 
and sacrificed for the public good. 

No matter how he may try to avoid stating both of the above facts, 
they are necessarily asserted by the Attorney-General as component parts 
of his proposition, as it cannot under any circumstances be assumed that 
war was declared by the United States against Spain for the destruction 
of the Maine unless Spain was actually as a matter of lact responsible 
therefor. 

It is needless to say that the claimants not only admit, for they assert, 
Spain's responsibility lor the destruction of the Maine; they do not, 
however, admit the other assertion that the destruction of the Maine was 
the cause of the war, or the conclusion attempted to be deduced therefrom 
that claims connected therewith passed into oblivion as between the 
United States and its own citizens. 

* In the case of Panama Riots where the United States referred to the cases en blue 
and the umpire to whom was submitted I lie question as to whether claims could be con- 
sidered as having been presented under such circumstances held that where there are 
many sufferers arising from a single cause and the Government refers to them as a elas-. 
that it was a sufficient presentation to bring them within the terms of the treaty, and 
under the jurisdiction of a Commission appointed to adjudicate claims which had been 
previously presented. (2 Moore on Arbitration, p. 1875.) 



24 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

The claimants having asserted in their verified petitions that Spain 
was responsible for the destruction of the Maine, and the Attorney-Gen- 
eral having also set it up as the basis of these motions by asserting that 
it was the cause of the war, there can be no question that these claims 
ar'e within the jurisdiction of this Court unless they were obliterated by 
the treaty of peace and not assumed by the United States. 

The position taken by all the counsel for the claimants in regard to 
the destruction of the Maine has been consistent throughout, and is dis- 
tinctly stated under the next point. The various positions taken by 
the counsel for the Government has been so inconsistent with each other 
and with the facts that it is proper to call the attention of the Court 
thereto. 

In the opening argument the Government took the position that the 
destruction of the Maine was the cause of the war, and on more than one 
occasion during the argument the expression "atrocious act," or its 
equivalent, was used by counsel for the Government; in another argu- 
ment on behalf of the Government the statement was made that the de- 
struction of the Maine was an act of war; during the closing argument 
there was open discussion in the court-room between two of the Govern- 
ment's counsel as to whether it was an act of war or merely one of the 
causes of the war, the result of which was the withdrawal of the "act of 
war " theory and adherence to the " cause of war " theory. 

Ordinarily upon argument of a demurrer the statements contained in 
the petition are taken as true, without in any way rendering the demur- 
ring party liable to charges of inconsistency for subsequently denying 
allegations which are thus admitted only for argument. In this case, 
however, the Attorney-General was confronted with the position that he 
could not sustain his demurrer without going outside ot the record and 
so instead of relying upon the allegations in the petitions, he alleged 
extrinsic facts to prove that Spain actually destroyed the Maine, and 
thereby caused the subsequent war. This position he evidently con- 
siderered necessary so as to neutralize the effect of admitting Spain's 
wrongful act, as alleged in the petitions. 

While this position was finally taken on the argument, the Attorney- 
General has foreseen that if these demurrers should be overruled he 
could not subsequently answer denying the allegation that the Maine 
was destroyed by the Spanish Government without laying himself open 
to further charges of inconsistency. The Government's brief, therefore, 
endeavors to qualify the implied admissions by charging the American 
people with having declared war against Spain, not because it blew up 
the Maine, but because the American people believed that Spain was re- 
sponsible therelor; it actually goes so far as to declare that such belief 
was as potent a factor in a declaration of war as though it had been 
actually proved that Spain was responsible for such destruction. 

It is a more serious matter, however, than the Attorney-General 
thinks to charge the American people, the Congress of the United 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 25 

States and President McKinley with having declared war, not upon 
ascertained facts and for existing causes, but upon the mere belief 
that a criminal act had been committed, which, if true, would justify, 
not war, but demand for the indemnity which had been offered if the 
responsibility were proved.* 



SEVENTH— It is not an historical fact that 
the destruction of the Maine was the cause of 
the war; this appears from the legislative his- 
tory of the declaration of war with Spain, and 
on demurrer no facts can he asserted except 
such as are within the judicial knowledge of 
the Court; the action of the executive and 
political departments of the Government 
clearly indicates that the war of 1898 with 
Spain was not declared on account of the 
destruction of the Maine. 

The position of the claimants in regard to the destruction of the 
Maine and its relations to the war which subsequently followed between 
the United States and Spain has never varied and, notwithstanding any 
statement of the Attorney-General to the contrary, is consistent with all 
other propositions advanced by them. They contend that the act re- 
sulted either from criminal negligence or by actual direction of the 
Spanish Government during a time of peace and was in direct violation 
of treaty stipulations ; that it added a culminating factor to the abhor- 
rent conditions which existed in Cuba and justified the United States in 
demanding that Spain withdraw her sovereignty therefrom, and that had 
Spain recognized in advance the hopelessness of a contest with the United 
States and withdrawn from Cuba, the claims for destruction of the Maine, 
both national and individual, would have been presented and pressed for 
payment in the same manner as other existing claims would have been 
presented and pressed. That the war resulted from Spain's refusal to 
withdraw from Cuba and a practical declaration of war on her part 

• : ( In page 4 of the Government's brief it is said: " We do not intimate that the destruc- 
tion of the Maine was caused directly or indirectly by the act or negligence of Spain; but 
one thing we do affirm as a matter of fact of history, that at the time the almost universal 
belief of the American people was that the Queen of Spain was responsible for that 
dreadful catastrophe. This belief was shared by Congress, as appears from the various 
resolutions that were introduced and of the joint resolution approved on April 20, 1898. 
The fact that the people, Congress and the President believed at the time that Spain was 
responsible was just as potent a factor in causing the war under the existing circum- 
stances as though that responsibility had been fixed upon Spain." The Attorney-General 
seems to have lost sight of the fact that on these demurrers Spain's liability is necessarily 
admitted. 



26 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

against the United States is clearly demonstrated by the legislative his- 
tory of the declaration of war, as it appears from the Congressional 
Record, the messages of the President of the United States, and the cor- 
respondence between the United States and the Spanish Government 
through the regular diplomatic channels. 

The destruction of the Maine occurred on February 15, 1898. Long 
prior thereto the President of the United States had called attention to 
the conditions existing in Cuba and had declared that if they were not 
ameliorated by the Spanish Government it would be necessary for the 
United States to intervene and protect its interests in that island.* 

Immediately after the destruction of the Maine a Naval Court of 
Inquiry was appointed pursuant to statute, which, on March 21st, 
reached the conclusion that the destruction of the Maine was not due to 
negligence on the part of the officers or crew, but was caused by the ex- 
plosion of a submarine mine, but no evidence had been obtainable fixing 
the blame; on March 28th, said report, together with the testimony, was 
transmitted by the President of the United States to Congress. f 

On April 11, 1898, the President of the United States transmitted a 
message to Congress on the relations of the United States to Spain by 
reason of the warfare in the island of Cuba, in which message he referred 
to the revolution in Cuba, which he declared had begun in February, 
1895, and had reduced Cuba to want, paralyzed its commerce and seri- 
ously involved the commercial and political interests of the United 
States.} 

* See First Annual Message of President McKinley, transmitted to Congress Decem- 
ber 6, 1897, Richardson's Messages, Vol. X., pp. 127 et scq. 

f "The conclusions of the Court are: 

That the loss of the Maine was not in any respect due to negligence on the part of any 
of the officers or members of her crew ; 

That the ship was destroyed by the explosion of a submarine mine, which caused the 
partial explosion of two or more of her forward magazines ; and 

That no evidence has been obtainable fixing the responsibility for the destruction of 
the Maine upon any person or persons. 

I have therefore directed the finding of the Court of Inquiry and the views of this 
Government thereon be communicated to the Government of Her Majesty the Queen Re- 
gent, and I do not permit myself to doubt that the sense of justice of the Spanish nation 
will dictate a course of action suggested by honor and the friendly relations of the two 
Governments. 

It will be the duty of the Executive to advise Congress of the result, and in the 
meantime deliberate consideration is invoked." 

(Senate Document No. 207, 55th Congress, 2nd Session, March 28th, 1S98. 

i " The forcible intervention of the United States as a neutral to stop the war accord- 
in"- to the large dictates of humanity and following many historical precedents where 
neighboring States had interfered to check the hopeless sacrifices of life by internecine 
conflicts beyond their borders is justifiable on rational grounds. It involves, however, 
hostile constraint upon both the parties to the contest as well to enforce a truce as to guide 
the eventual settlement. 

" These elements of danger and disorder already pointed out have been strikingly 
illustrated by a tragic event which has deeply and justly moved the American people. I 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 27 

He then summarized the grounds for intervention, first, in the cause 
of humanity; second, that we owed it to our citizeus in Cuba to afford 
tiieni protection and indemnity for life and property which no Govern- 
ment there can or will afford; third, to prevent injury to the commerce, 
trade and business of our own people, and, fourth, which he declared to be 
of the utmost importance, to relieve t is Government from the enormous 
expense which the warfare in Cuba had entailed upon it to preserve 
neutrality. 

The destruction of the Maine is alluded to as evidence of the existing 
elements of danger and disorder which justified the intervention of the 
United States in terminating the warfare. 

On the same day the President of the United States, in another mes- 
sage to Congress, transmitted Consular correspondence respecting the 
condition of the reconcentrados in Cuba, the state of war in that island 
and the prospect of the projected autonomy.* 

The foregoing messages as well as many other communications rela- 
ting to the warfare in Cuba were referred to the Committee on Foreign 
Relations in the Senate, and to the Committee on Foreign Affairs in the 
House of Representatives. 

On April 13th, ls;is, the Committee on Foreign Relations of the 
United States submitted a report relative to affairs in Cuba.f in which it 

have already transmuted to Congress the report of the naval court of inquiry on the de- 
struction of the battleship Maim in the harbor of Havana during the night of the 15th of 
February. The destruction of that noble vessel has filled the national heart with inex- 
pressible horror. Two hundred and fifty-eight brave sailors and marines and two officers 
of our Navy, reposing in the fancied security of a friendly harbor, have been hurled to 
death, grief and want brought to their homes, and sorrow to the nation. 

" The naval court of inquiry, which, it is needless to say, commands the unqualified 
confidence of the Government, was unanimous in its conclusion that the destruction of the 
Maine was caused by an exterior explosion, that of a submarine mine. It did not assume 
to place the responsibility. That remains to be fixed. 

" In any event the destruction of the Maim: by whatever exterior cause, is a patent 
and impressive proof of a state of things in Cuba that is intolerable. That condition is 
thus shown to be such that the Spanish Government cannot assure safety and security to 
a vessel of the American Navy in the harbor of Havana on a mission of peace, and right- 
fully there. 

" Further referring in this connection to recent diplomatic correspondence, a despatch 
from our Minister to Spain, of the 26th ultimo, contained the statement that the Spanish 
Minister for Foreign Affairs assured him positively that Spain will do all that the highest 
honor and justice require in the matter of the Maine. The reply above referred to of the 
31st ultimo also contained an expression of the readiness of Spain to submit to an arbitra- 
tion all the differences which can arise in this matter, which is subsequently explained by 
the note of the Spanish Minister at Washington of the 10th instant, as follows : 

" ' As to the question of fact which springs from the diversity of views between the 
reports of the American and Spanish boards. Spain proposes that the facts be ascertained 
b}' an impartial investigation by experts, whose decision Spain accepts in advance.' 

" To this I have made no reply " (II. II., Document No. 405, 55lh Congress, 2d Ses- 
sion, April 11th, 1898). 

* Senate Document No. 230, 55th Congress, -Jd Session, April 11th, 1808. 

•(•Senate Report No. 885, 55th Congress, 2d Session, April 13th, 1898. 



28 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

reviewed the political history of Cuba during the preceding three years 
and referred to many acts of atrocity on the part of the Spanish Govern- 
ment. That report declares that the destruction of the Maine was only 
a single incident in the relations of this Government with Spain, and 
that "if that calamity had never happened the questions between the 
United States and that Government would press for immediate solu- 
tion "; that the unfortunate condition of Cuba and the continuance of 
the insurrection in that island was due to Spanish misrule; that such 
Government had violated the laws of civilized warfare in the conduct of 
her military operations, slaughtered prisoners after their surrender, mas- 
sacred the sick and wounded insurgent soldiers and their physicians and 
nurses in their captured hospitals ; it declared the United States "cannot 
consent upon any conditions that the depopulated portions of Cuba shall 
be re-colonized by Spain any more than she should be allowed to found a 
new colony in any other part of this hemisphere, or island thereof. 
Either act is regarded by the United States as dangerous to our peace 
and safety." The report states that Spain had failed to perform her 
treaty obligations and other international duties toward the United 
States ; that it was impossible to minutely specify these derelictions, but 
that American citizens had been seized and imprisoned without shadow 
of right; that the assassination of Ruiz, an American citizen, was the 
act of Spanish officials who held him in custody unwarranted by the 
treaty rights and that no reparation had been made for such act, although 
it had been demanded by the Government; that of fifty million dollars 
of property in the island of Cuba belonging to the citizens of the United 
States, much had been destroyed by the acts of Spain, and that she 
was unable or unwilling to prevent destruction of the remainder; that 
claims on file in the Department of State against Spain, for indemnity 
for this destroyed property then amounted to about sixteen million dol- 
lars ; that Spanish military officers had levied contributions upon Amer- 
ican planters as the price for the preservation of their estates and the 
continuance of their agricultural operations. Annexed to the report, 
which consists of over COO pages, are statements of many claims filed 
with the Department of State, and which the records of this Court show 
have been presented to it for adjudication. 

The report concludes by recommending the resolutions which were 
adopted on April 20th, 1898, with the addition of the fourth section dis- 
claiming the intention of acquiring the island of Cuba. 

It will be noticed that the resolves are based upon a preamble which 
refers to the abhorrent conditions which have existed for three years in 
the island of Cuba, as well as to the destruction of the Maine. The 
Attorney-General's proposition that the destruction of the Maine was the 
cause of the war is based exclusively upon the fact that such destruction 
was referred to in the preamble of the resolutions of April 20th ; ins 
proposition, therefore, cannot be sustained as to the destruction of the 
Maine causing the war without having the same effect as to every other 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 29 

act mentioned in the Committee's Report ; that is. the imprisonment of 
Ruiz, the execution of Lopez, and the acts and depredations which were 
the basis of the claims filed by American citizens with the State Depart- 
ment, and amounting at the time of the report to over sixteen million 
dollars, all of which are now before this Court for adjudication.* 

This joint resolution was passed by both Houses of Congress on April 
19th; it became a law by approval of the Presidenton April 20. What sub- 
sequently transpired appears from the President's message transmitted to 
Congress on April -.'5, 1898 {Cong. Record, p. 4\'4s), in which he stated that 
he had communicated to the Spanish Minister in Washington the demand 
which it had become the duty of the Executive to address to the Govern- 
ment of Spain in obedience to said resolution, and that thereupon the 
Minister had asked for his passports and withdrawn from this country; 
that the United States .Minister at Madrid was in turn notified by the 
Spanish Minister for Foreign Affairs that the withdrawal of the Spanish 
representative from the United States had terminated diplomatic relations 

* The resolutions are as follows: (The preamble and first, second and third reso- 
lutions are identical as recommended and as adopted; the fourth resolution was added 
after the report was received. 80 U. S. St. at L., p. 738). 

[IYnnc Resolution— No. 21, 30 U. S. Stat, at L., p. 73S.] 

JOINT RESOLUTION for the recognition of the independence of the people of Cuba, 
demanding that the Government of Spain relinquish its authority and government in 
the islamfof Cuba, and to withdraw its land and naval forces from Cuba and Cuban 
waters, and directing the President of the United States to use the land and naval 
forces of the United States to carry these resolutions into effect. 

Whereas the abhorrent conditions which have existed for more than three years in 
the island of Cuba, so near our own borders, have shocked the moral sense of the people 
of the United States, have been a disgrace to Christian civilization, culminating, as they 
have, in the destruction of a United States battleship, with two hundred and sixty-six of 
its officers and crew, while on a friendly visit in the harbor of Havana, and cannot longer 
be endured, as has been set forth by the President of the United States in his message to 
Congress of April eleventh, eighteen hundred and ninety-eight, upon which the action of 
Congress was invited. Therefore, 

Resolre.d by the Senate and Home of Representatives of the United States of America in 
Congress assembled, First. That the people of the island of Cuba are, and of right ought to 
be, free and independent. 

Second. That it is the duty of the United States to demand, and the Government ot 
the United States does hereby demand, that the Government of Spain at once relinquish 
its authority and government in the island of Cuba and withdraw its land and naval forces 
from Cuba and Cuban waters. 

Third. That the President of the United States be, and he hereby is, directed and 
empowered to use the entire land and naval forces of the United States, and to call into the 
actual service of the United States, the militia of the several States, to such extent as 
may be necessary to carry these resolutions into effect. 

Fourth. That the United States hereby disclaims any disposition or intention to exer- 
cise sovereignty, jurisdiction, or control over said Island except for the pacification 
thereof, and asserts its determination, when that is accomplished, to leave the government 
and control of the island to its people. 

Approved, April 20, lS'JS. 



30 BEFORE TIIE SPANISH TREATY CLAIMS COMMISSION. 

between the two countries, and that all official communications between 
their respective representatives ceased therewith.* 

The President also referred to a note addressed to the United States 
Minister at Madrid by the Spanish Minister of Foreign Affairs that the 
Government of Spain had treated the reasonable demands of this Gov- 
ernment as measures of hostility and had followed that with instant and 
complete severance of relations by its actions which, in the usage of 
nations, accompanies an existing state of war between sovereign powers; 
he further stated that he had been constrained in exercise of the 
power and authority conferred by the resolutions to proclaim a blockade 
of a portion of Cuba, and that he recommended the adoption of a joint 
resolution declaring that a state of war existed between the United States 
of America and the Kingdom of Spain. 

On April 25, 1808, Senator Allen introduced a joint resolution! 
declaring the existence of a state of war since the 15th day of February, 
1898, between the United States and Spain, which was committed to the 
Committee on Foreign Relations. After the receipt by the House of Rep- 
resentatives of the President's message aforesaid, there was presented from 
the Committee on Foreign Affairs of that body an act J declaring that 
war exists between the United States and the Kingdom of Spain since the 
21st day of April, 1898, including said chite. 

The Congressional Record shows that there was some epiestion raised 
as to whether the title of the act was co-extensive with its terms, and 
thereupon the statement was made that the bill had been drawn by the 
Attorney-General of the United States. 

The act as passed by the House, and immediately transmitted to and 
passed by the Senate, declared that war existed and had existed since April 
21,1898, including said day, § and this date was adopted notwithstanding 
the fact that there were then pending in the House of Representatives, 
and in the Senate the resolution introduced by Senator Allen, and other 
resolutions to the effect that war be declared to exist from the 15th day 
of February, 1898. 

* See also U. S. Foreign Relations for 1S98, pp. 761 et seq. 

t S. E., 158. 

\ H. R., 10.0S6, Coup. Record, 4252. 

§ Chap. 189. — An Act Declaring that war exists between the United States of America and 
the Kingdom of Sjiuin. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in. Congress assembltd, First. That war be, and the same is herebj', declared to exist, and 
that war has existed since the twenty-first day of April, Anno Domini eighteen hundred 
and ninety eight, including said day, between the United States of America and the King- 
dom of Spain. 

Second. That the Presideut of the United States be, and he hereby is, directed and 
empowered to use the entire land and naval forces of the United States, and to call into the 
actual service of the United States the militia of the several States, to such extent as 
may be necessary to carry this Act into effect. 

Approved, April 25, 1898. (30 U. S. Stat, at Large, p. 364.) 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 31 

The act was prepared by the Attorney-General and passed by both 
Houses of Congress, and the care taken to declare that the war existed 
from the 51st day of April, including said day, is evidence on the face 
of the bill that it was the intention of both of the political departments 
of the Government to declare that war did not exist prior to the '21st day 
of April, and that the cause of the war was the statement in the message 
of the President of April 55 that Spain had refused the reasonable de- 
mand of the United States to withdraw from the island of Cuba and had 
treated that demand as a hostile act, and that Spain herself had taken 
the initiative in declaring war not only by the manner in which the de- 
mand was received but by subsequent acts which could only be considered 
as those of war. 

The proposition that the destruction of the Maine was the cause of 
the war with Spain has been advanced by the Attorney-General regard- 
less of the awkward position in which it places the executive and 
legislative departments of this Government, as one of the most im- 
portant principles of international law, which this nation is bound to 
support. 

Every department of the Government of the United States is com- 
mitted to the settlement of disputes between this and foreign countries 
by arbitration instead of war, and it is not possible that this Court should 
in its initial decision place itself upon record that the political depart- 
ments of this Government violated the principle of international law to 
which this country is committed above all others. 

The Attorney-General's position, therefore, that the destruction of 
the Maine was the cause of the war cannot be sustained without placing 
the United States on record that it refused the offer of a foreign nation 
to arbitrate a question in dispute between them and to respond to any 
award resulting from such arbitration, but that within three weeks after 
such offer of arbitration was made they deliberately declared war for the 
cause which the other nation had offered to submit to arbitration. 

The declaration of war with Spain and the causes which led up to it 
are so fresh in the minds of the Court and counsel that it is almost impos- 
sible in an argument of this nature not to refer to current history and to 
those matters which are necessarily uppermost in our minds when this 
subject is discussed, and it therefore came as a surprise to the counsel of 
the claimants that at this late date the Executive Department of the 
United States, after all of the efforts which it has made during the past 
four years to disassociate the war with Spain with the destruction of the 
Maine, should coim forward and, as a means of avoiding liability for 
the claims of its citizens which were sacrificed for the public welfare in 
obtaining peace, and assumed by the treaty which terminated the war, 
now declare for the first time that the war with Spain was caused by 
the destruction of the battleship and was declared notwithstanding the 
offer of the Spanish Government to arbitrate the question of liability 
therefor. 



32 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

EIGHTH.— A treaty of peace does not, under 
the principles of international law, neces- 
sarily obliterate the claims of citizens of either 
country against the other, even though such 
claims were connected with the causes of the 
war terminated by the treaty of peace. 

The legal elements of the proposition upon which the Attorney-General 
attempts to support his demurrers are based upon the proposition that a 
treaty of peace necessarily obliterates all claims of the citizens of one 
country against the government of the other which are in any way con- 
nected with the causes of the war terminated by the treaty. He declares, 
although his citations fail to sustain him, that this is one of the princi- 
ples of international law which has been recognized and adopted by civi- 
lized nations. 

It has already been demonstrated that the destruction of the Maine 
was not the cause of the war with Spain, but, even assuming for the 
purpose of the argument that such was the case, the Attorney-General's 
proposition is not tenable. 

In subsequent points it will be shown that even if this principle were 
recognized under the rules of international law, its only possible appli- 
cation would be as to the relations of the Government of the United States 
to the Government of Spain, and it would not, because it could not, in any 
manner, affect the relations of the United States with those of its citizens 
whose claims were sacrificed ; and that even if the principles of interna- 
tional law were correctly stated by the Attorney-General they would have 
to give way to the peculiar protection afforded to citizens of the United 
States by the Constitution. 

The leading authorities on international law, however, do not support 
the Attorney-General in his fundamental proposition ; in order to sus- 
tain his position he must demonstrate that a treaty of peace not only ob- 
literates claims of the citizens of each country against the government of 
the other country, if such claims were in any way connected with the 
causes of war, but that it also relieves the governments from indemni- 
fying their citizens for the claims which are thus obliterated for the 
general welfare of the country. 

It is undoubtedly true that any government exercising national and 
sovereign functions is competent through its treaty-making power, and 
the exercise of the right of eminent domain, to make a treaty with another 
government, whether such treaty be of peace or of any other nature, 
containing stipulations by which the claims of its citizens are satisfied 
and obliterated as against such other government. It also may be true 
that in the absence of constitutional provisions protecting them, the 
citizens' only opportunity to obtain compensation for the claims thus 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 33 

sacrificed is through the voluntary act of their own government, as the 

right to claim compensation from, as well as to sue, the sovereign, as a 
general rule, can only be exercised by the sovereign's own consent. 

While, however, it is competent for governments to thus sacrifice the 
claims of their citizens, the mere fact of the conclusion of a treaty of 
peace does not obliterate such claims without special expressions to that 
effect, and this applies equally to claims connected, as well as to those 
unconnected, with the causes ol the war. 

Tie' Attorney-General's proposition amounts to this: Had the destruc- 
tion of the Maine been the only incident marring the friendly relations 
between Spain and the United States, and the United States had de- 
manded reparation therefor, Spain had refused, war had been declared 
with a distinct statement in the declaratory act itself that it was waged 
solely mi account of the destruction of the Mainr. and a treaty of peace 
had subsequently heen entered into containing the same relinquishment 
as againsi Spain, and assumption by this Government, as is contained in 
the Treaty of Paris, the United States would be under no legal or moral 
obligation whatsoever to satisfy its own citizens for whose sake the war 
was undertaken, and who more than any other persons would he entitled 
to indemnity. 

If the Attorney-General correctly states the rule, the greater the loss 
to the citizen, the more flagrant and pronounced the injury, the less op- 
portunity there is for him to recover his claim, the justice of which is 
necessarily recognized by the resort to war to enforce it. 

Had Great Britain refused to arbitrate the Alabama claims, and had it 
been necessary for the United States to resort to warlike methods to 
obtain the indemnity demanded therefor, the fact that the war had been 
waged to collect those very claims would, under the Attorney-General's 
proposition, relieve this Government from all obligation to indemnify 
t In- claimants. 

Daniel Webster, while a Senator of the United States, delivered a 
speech on the French Spoliation Claims, in which he reduced to a com- 
plete absurdity the proposition that a war waged until peace is obtained 
obliterates the claims connected with its causes.* 

In fact, according to the Attorney- General's proposition, all that 
claimants against a foreign government, whose claims are in any way 

* "The mere fad of war run never extinguish any claim, [f, indeed, claims for indemnity 
be the professed ground of war, and peace be afterwards concluded without obtain- 
ing any acknowledgment of the right, such a peace may be construed to be a relinquish- 
ment of the right on the ground that the question has been put to the arbitration of the 
sword, and decided. But if a war be waged to enforce a disputed claim, and it be carried 
on till the adverse party admit the claim, and agree to provide for its payment, it would 
be strange indeed to hold that the claim itself was extinguished by the very war which 
had compelled its express recognition. Now, whatever we may call that state of things 
which existed between the United States and France from 1*798 to 1800, it is evident that 

neither party contended or supposed that it lent I n 3Uch a state of things as had 

extinguished individual claims lor indemnifications lor illegal seizures anil confiscations" 
(4 Webster s Works. 163; 2 Wharton's Int. Law Dig., p. B74). 



34 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

directly or remotely connected with causes of war, can expect to receive 
on the conclusion of a war waged on their behalf, is to be told that their 
wrongs have been avenged; their flag floats over a few thousand more 
square miles of territory than it did before the war; the offending Gov- 
ernment has been punished by loss of life and territory, and with the 
return of peace, the claims for which they sought indemnity, and which 
their own government was bound to assert, on their behalf, have as to 
the personal elements thereof, been so completely obliterated, or, as it has 
been somewhat poetically expressed in the Attorney-General's brief, 
" passed forever into oblivion,'' that even their own government which has 
used their claims to obtain peace by surrendering them, is not bound to 
indemnify them in any manner whatever. 

The Attorney-General has entirely confused the international relations 
of the Governments making the treaty and the rights of the citizens 
whose claims are sacrificed, and while the authorities which he cites might 
sustain his position, that as between Governments the causes of war pass 
into oblivion to such an extent that neither Government can make a de- 
mand upon the other Government for the same cause and renew hostili- 
ties on that basis, they do not sustain the other element that the citizens 
lose their right of indemnity against their own Government. 

Chancellor Kent, whom he cites, expressly declares (169) that "the 
peace does not affect private rights which had no relation to the war," and 
the balance of that learned jurist's opinion on this subject completely sus- 
tains the claimant's position. Dana's Wheaton declares that the treaty of 
peace does not extinguish claims founded upon debts or injuries sustained 
prior to the war. 

In fact, Section 538 of the original text of Wheaton's Elements, as it 
has been annotated by both Dana and Boyd, declares that " the power of 
concluding peace, like that of declaring war, depends upon the municipal 
constitution of the State." 

And in Section 539, Mr. Wheaton declares: "The power of making 
treaties of peace, like that of making other treaties with foreign States 
is, or may be, limited in its extent by the national Constitution." 

Prof. Theodore S. Woolsey says that peace is a return to a state of 
amity, and, in the absence of treaty stipulations, to intercourse on the 
old basis, and that the effect of a treaty on all grounds of complaint for 
which a war was undertaken is to abandon them, but he qualifies the 
statement with the assertion by a practical admission that such is not 
the case as to private rights.* 

* " Such is the case as far as public rights are concerned. But private rights, the pros- 
ecution of which is interrupted by war, are revived by peace, although nothing may be 
said upon the subject ; for a peace is a return to a normal state of things, and private rights 
depend not so much on concessions, like public ones, as on common views of justice. And 
here we include not only claims of private persons, in the two countries, upon one another, 
but also claims of individuals on the government of the foreign country, and claims — pri- 
vate and not political — of each government upon the other existing before the war " 
(Woolsey 's Introduction to the Study of Int. Law, 6th Ed., pp. 263 et seg.). 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 35 

There are but few countries in which the right of tin- private citizen 
to just compensation for his property taken for public use is protected as 
thoroughly as it is in the United States by the Constitution; the writers, 
therefore, on international law, many of whom are foreigners, have not 
considered this point from our standpoint, when they have asserted that 
matters connected with causes of war are obliterated by a treaty of peace. 
The American authors whose views are cited in the Attorney-General's 
brief have all qualified their expressions on this subject with the state- 
ment that the effect of a treaty of peace depends, as between the re- 
spective Governments and their citizens on their own constitutional 
and municipal provisions. 

There is no positive assertion in any of the authorities cited by the 
Attorney-General that claims of private citizens against the other 
Government pass into oblivion on the execution of a treaty of peace. 

Halleck. who goes as far as any one, says a treaty of peace does not 
extinguish claims unconnected with the causes of the war. Some of the 
authorities do not discuss the question of the obliteration of such claims, 
but simply confine the expression of their views to a positive assertion 
that claims unconnected with the war survive a treaty of peace, and are 
unaffected thereby. 

l'hillimore (vol. 3, 3d edition, p. S67) says that if a war should happen 
to havebeeu waged on account of an injury done to a private person, then 
the payment of his damages should be expressed; for it requires but a 
slight conjecture to found the remission of a penalty. Lint this language 
evidently shows that the remission has got to lie in some way found from 
the terms of the treaty: it simply says that the presumption might lie in 
favor of the remission on the general principle that claims ought to be re- 
mitted so as not to provoke a renewal of hostilities. 

There is nothing, however, in these, or in any other statements, to 
sustain the Attorney-General or this Court in declaring that such ex- 
pressions can be construed as admissions that claims thai are connected 
with the war, are obliterated : such a proposition is not necessarily the 
converse of, or deducible from, the other. 

In the case of the Molly, cited on the Attorney-General's brief 1 1 Pod- 
sou's Ailtn. Rep , 394), Sir William Scott (Lord Stowell) did declare that 
"when a treaty of peace has been concluded the revival of any griev- 
ances arising before the war comes with a verj ill grace and is by no means 

to he cue -aged. Treaties of peace are intended to bury in oblivion all 

complaints, and if grievances are not brought forward at the time when 
peace is concluded it must lie presumed that it is not intended to bring 
them forward at any future time." 

This, like Phillimore's assertion, carries out the views expressed by 
many writers on international law. especially those of foreign countries, 
who do not consider the effecl of the constitutional provisions of this 
country, that a treaty of peace ought, from a moral standpoint, and for 
the sake of subsequent friendly relation- between the two countries, to 



36 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

emphatically dispose of all claims which were in any way connected with 
the war, in order to prevent their being revived, and possibly becoming the 
basis of bitter diplomatic controversy, and even of renewed hostilities. 

The fact that these authors have urged the insertion of articles in 
treaties of peace positively releasing all claims connected with the 
causes of the war. clearly indicates that, the proposition asserted by the 
Attorney-General is not a principle of international law which has be- 
come so universally accepted that it could in any way be binding upon 
citizens of the United States when property rights are at stake. 



NINTH. When the claims of citizens of 
either country against the other are obliter- 
ated by a treaty of peace, such obliteration is 
the result of the exercise throug'h the treaty- 
making power of the right of eminent domain, 
sacrificing private property for public wel- 
fare, and under the principles of international 
law the government exercising such right is 
morally bound to indemnify its citizens for 
losses thus sustained. 

From the earliest time until the present, writers on international law 
have asserted the principle that indemnity to citizens must go hand in 
hand with the right of their government to confiscate and sacrifice their 
claims against another government for the purpose of concluding a treaty 
of peace; and this applies to all claims, including those for which the 
war was waged. 

The principle that private property cannot be taken for public use 
without just compensation is one of the fundamental principles upon 
which not only this, but many other governments are based. It far ante- 
dates the Constitution: it rests upon such a solid foundation that the 
framers of the Constitution did not consider it necessary to incorporate 
it in the instrument as originally prepared. In fact, the Bill of Rights, as 
the first ten amendments of the Constitution are called, was only incor- 
porated in the Constitution in order to satisfy the demands of some of 
the State Conventions which ratified it. .Many people believed that the 
enumeration of the various rights specified in those amendments might 
be prejudicial to those rights in their broadest conception, and many 
writers on constitutional law have considered that the adoption of the 
amendments, so far as affording protection to the rights and liberties of 
American citizens therein enumerated, was unnecessary.* Be that as it- 
may, the principle that private rights cannot in any way be sacrificed for 

* See 1 Story's Commentaries, §§ 300-805, pages 217 el seq. 



ARGUMENT OF CHAS. H. KUILER IN MAINE CASES. 37 

the public welfare is one of .the foundation stones upon which this Gov- 
ernment is built. 

Iu Warevs. Eylton* in which live of the judges delivered opinions, 
Mr. Justice Chase, in the leading opinion of the Court, held thai 
the Congress under the Confederation had the power to sacrifice 
rights and interests of private citizens ill order to secure the safety 
or prosperity of the public. As the treaty of peace with Great 
Britain of l?s.l was under consideration, he could not base his views 
as to the necessity of indemnifying citizens whose claims were sacri- 
ficed upon the constitutional provision, but he based it upon the 
fundamental principles of justice. In the course of his opinion 
he says (p. 545) that the immutable principles of justice, the public 
faith of the States that confiscated and received debts pledged to the 
debtors and the rights of the debtors violated by t lie treat v. "all com- 
bine to prove that ample compensation ought to be made to all the 
debtors who have been injured by the treaty for the benefit of the pub- 
lic." To this be added: " The principle is recognized by the Constitu- 
tion, which declares 'thai private property shall not be taken for public 
use without just compensation." He cites Vattel (Lib. 1. c. 20) in sup- 
port of the general principle, and adds that it is evident that the debtors 
"ought to be indemnified, and it is not supposed that those whose duly 
it may he to make the compensation will permit the rights of our citi- 
zens to lie sacrificed to a public object without the fullest indemnity.' 
The fact that the italicised words are so in the original shows what stress 
the Court laid upon the claims of citizens' being property rights, and 
confiscation of them to procure a treaty of peace being a public use.f 

* U. S. Supreme Court, 1796, 3 Dallas, 190. 

t Extract from Grotius on War and Peace, Bk. III.. Chap. XX., n. 

XVI. " Yet those Debts, which were due to private Persons at the beginning of the War, 
are net to be accounted forgiven, for these are not acquired by the Right of War, but only 
forbidden to be demanded in time of War; therefore the Impediment being removed. /. e., 
the War ended, they retain their full Force. But tho' it ought not to be easily presumed, 
that what was a Man's Right before the War is taken from him, for this Cause chiefly (as 
Cicero well observes). Civil Societies were first constituted, that every one might keep Ids 
own, yet this must be understood of that Right, which is derived from the Inequality of 
Things. 

XVI II. —There is not the same Reason that private Men should be thought to 
remit the Right of demanding Punishment, because this may without War be judicially 
required . but since this Right is not ours in tin' same manner, as that, which arises from 
Inequality, and besides Punishments having always something odious: The slightest Con- 
jectures that may be drawn from the Terms of the Treaty, are sufficient to found a jusl 
Presumption, that this also i^ passed by. 

XIX.— But whereas we have said, thai the Right, which we had before the War, 
should not easily be thought to be remitted, this indeed holds very true in the Right, of 
private Men. Bui as to the Right of Kings and Nation-', a Remission may be more easily 
presumed, if tlie Terms of the Treaty, or probable Conjectures drawn from them, lead us 
to that Interpretation; but especially if the Right in question were net clear, but in dis- 
pute. For it is humane to believe that those who make Peace intend sincerely to stifle 
the Seeds of War (London edition, 1737)." 



38 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 



TENTH.— The principle of international law, 
as stated in the foregoing- point, as to the 
moral obligation of Governments to indemnify 
their citizens for claims against a foreign 
Government, sacrificed for the purpose of 
making peace, has been incorporated, as an 
inalienable right of citizens of the United 
States, in the Constitution (Art. V. of Amend 
uients and citizens of the United States 
who ?e claims are thus sacrificed for the public 
welfare are entitled to just compensation and 
may assert their claim therefor in any Court 
to which Congress gives jurisdiction, and this 
rule applies to claims of every nature, 
even though they were the cause ofwar ter- 
minated by a treaty of peace. 

If it can be demonstrated that a claim of a citizen of the United 
States against a foreign Government is a property right, and if the re- 
mission or the obliteration of the same is a taking of private property for 
the public welfare, it necessarily follows that the citizen whose property 
is sacrificed must be awarded just compensation. In this respect it 
matters not whether the right of eminent domain on the part of the Gov- 
ernment is exercised for the purpose of securing the resumption of peace 
after hostilities commenced, or to prevent an outbreak of hostilities, or 
to maintain a continuance of peaceful relations before hostilities have 
actually commenced. 

In support of their claims the petitioners contend: 

(a.) Claims of citizens of the United States against foreign powers 
are property rights. 

(b.) The obliteration of claims of its citizens against a foreign 
Government by treaty between the United States and that 
Government is an exercise of the right of eminent domain 
and a taking of private property for public use within the 
meaning of Article V. of the Constitution of the United 
States. 

(c.) The principle of just compensation for taking private prop- 
erty for public use is applicable to claims sacrificed to obtain 
a treaty of peace as well as to those in which the treaties are 
concluded during a time of peace. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 39 

(a.) Claims of citizens of the United States against foreign powers 
are property rights. 

It seems almost unnecessary to cite any cases in support of tins- 
proposition ; a few references, however, will be given. 

Mr. Justice Story held in 1828* that " the right of indemnity for an 
unjust capture, whether against the captors or the sovereign, whether rem- 
ediable in his own courts or by his own extraordinary interposition and 
grants upon private petition or upon public negotiation is a fight attached 
to the property itself and passes by cession to the use of the ultimate suf- 
ferer." In the case cited the Court decided that the claim of a citizen of 
the United States against Spain for an unjust capture of his vessel was 
not only a property right, but was one of such a tangible nature that it 
passed under a general assignment ol an insolvent debtor to his assignee. 
and that it so passed even before the United States had negotiated with 
Spain a treaty indemnifying it for the losses sustained by its citizens for 
depredations upon American commerce. 

This decision rendered, as it was, by one of the ablest jurists who 
ever sat upon the bench of the highest Court in t his or in any other 
country, has been followed so repeatedly that it has become an elementary 
principle of the law as it is administered in the constitutional and 
statutory courts of this country. f 

(A. ) The ohliteration ofclaimsof its citizens against a foreign govern- 
ment tig treaty betioeen the "United states and such government is an exer- 
cise of the right of eminent domain and a taking of private property 
for public use within the meaning of Article V. of the Constitution of 
the United States. 

It would be impossible to give a complete list of all the treaties between 
the United States and foreign powers in which claims of citizens have 
been surrendered. Most of them have provided for some method of as- 
certaining the amounts of the claims surrendered, and all of that class 
will be found in Moore's History of International Arbitration, together 
with an account of the proceedings based thereon. The frequent exercise 
of this right is evidenced by the fact that, up to 1896, the United States 
had participated in fifty-two arbitrations for the settlement of claims, 
and in many cases the claims of citizens of this country were surrendered 

* Comegys vs. Vasse, U. S. Supreme Court, 1828, 1 Pet., 193, p. 215. 
f Some of the many cases in which it has been followed are: 

William* vs. Heard, I . S. Supreme Ct., 1891, 149 V. S.. 529, Lamar, ./. 

Phelps vs. McDonald, U. S. Supreme Ct., 187S, 99 U. S., 298, Swaysk, ■/. 

Clark vs. Clark, V. S. Supreme Ct., 1854, 17 Howard, 315, Catron, ,/. 

Leonard vs. Nye, Ma-*. Supreme Ct.. ls;^ 128 Ma--.. 455, Gray, Ch. J. 

Delafield vs. Cohhn, N. Y. Ct. Chan.. ly'S. 1 Paige, 139, Walworth, Chan, 

Levis vs. Hell, I'. S. Supreme Ct., Is."i4, 17 Howard, 616, Grier, ./ 



40 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

and barred as against the foreign government, and assumed by the 
United States.* 

(c.) The principle of rendering just compensation for taking private 
property for public vse is applicable to claims sacrificed to obtain a treaty 
of peace, as well as to those in which the treaties are concluded during a 
time of peace. 

Fortunately, the United States has had occasion to conclude very few 
treaties of peace. We have already seen that the Supreme Court consid- 
ered that the principle of just compensation for claims of citizens sacri- 
ficed applied to the treaty of peace negotiated by the Confederation ; the 
United States indemnified its citizens for claims sacrificed in terminating 
the strained relations between this country and France in 1800 and iso:;. 
and also those sacrificed in concluding the treaty of peace between this 
country and Mexico after the war of 1846. 

On numerous occasions, however, treaties have been concluded by the 
United States with foreign powers, which were practically treaties of peace 
because they were concluded for the purpose of avoiding the actual hos- 
tilities which would undoubtedly have ensued had such treaty not been 
concluded. The treaty of 1819 with Spain, by which Florida was ceded 
to this country, was the only means by which a war was averted between 
this country and Spain on account of the depredations committed on our 
commerce by that country, and the menace which Florida was at that 
time to the peace of this country. Claims of our citizens were extin- 
guished as against Spain, the United States assumed them and settled 
them. In 1842 the relations between this country and Great Britain be- 
came so acute that troops of both countries were mobilized on the border 
line. By the diplomatic ability of Daniel Webster and Lord Ashburton, 
the treaty known by their names was consummated, and the American 
owners of property which passed from under the sovereignty of the United 
States to that of Great Britain, were compensated for the losses sustained 
by them. 



ELEVENTH —Treaties of peace stand on the 
same footing- as all other treaties made by the 
United States. 

Counsel for the Government are evidently endeavoring to create the 
impression that there is some subtle difference between the effect of a 
treaty of peace, and of other Conventions betweeu the United States and 
a foreign power extinguishing the claims of its citizens. As a matter of 

* Comegys vs. Vane, U. S. Supreme Ct., 1828, 1 Peters, 193, 218, Story, J. 
Phelps vs. McDonald, V. S. Supreme Ct., 1878, 99 U. S., 298, 303, Swayne, J. 
Williams vs. Heard, U. S. Supreme Ct., 1891, 140 U. S., 529, Lamar, J. 



I 



ARGUMENT OF CHAS. H. BUTLEK IN MAINE CASES. 41 

fact, however, there is no distinction whatever between treaties of peace 
and other treaties. All treaties are concluded and ratified under the 
treaty-making power of the United States, and the effect so far as 
citizens of this country are concerned is necessarily the same. 

An effort was made in the Constitutional Convention to discriminate 
between treaties of peace and other treaties, and Mr. Madison, on 
Friday, February 7th, L7S7, moved to insert the words " except treaties 
of peace " after the ratification clause of the treaty so as allow them to be 
made with less difficulty than other treaties. His motion was agreed to 
at the outset, but in the course of the discussion Mr. Gerry declared 
that in treaties of peace " a greater rather than a less proportion of votes 
was necessary than in other treaties. In treaties of peace the dearest 
interests will be at stake, as the fisheries, territories, &c. In treaties of 
peace also there is more danger to the extremities of the continent of 
being sacrificed than on any other occasion." On that day Mr. Madison's 
motion was adopted, but on the following day, Mr. King moved to strike 
out the exception as to treaties of peace and the added clause to that 
effect was struck out after a debate in which Mr. Wilson, of Pennsyl- 
vania. Mr. Gouverneur Morris, Mr. Gerry. Mr. Sherman and Mr. 
Madison participated.* 

Chancellor Kent, in his Commentaries. says:f 

'• The department of the Government which is entrusted by the Con- 
stitution with the treaty-making power is competent to bind the national 
faith in its discretion, for the power to make treaties of peace must lie 
co-extensive with all the exigencies of the nation. * * * All 
treaties made by that power become of absolute efficacy: they are the 
supreme law of the land." lie cites the case of the Peggy, 1 Cranch, 
103, in which Chief Justice .Marshall declared that individual rights 
and vested rights of citizens might lie sacrificed by treaty for national 
purposes, and he also cites Ware v. Hylton (3 Dallas. 199, 245) as au- 
thority that private rights might be sacrificed to secure public safety. 
He, however, bases the entire right to make treaties of peace and even 
to alienate territory for that purpose on the constitutional treaty-mak- 
ing power of the United Slates, and at once accompanies it with the 
statement that '■the Government" would be bound to make compensa- 
tion ami indemnity to the individuals whose rights had thus been sur- 
rendered. The views of .Mr. Wheaton, cited in a previous note, 
are that " The power of concluding peace, like that of declaring war. 
depends upon the municipal constitution of the State." He also says :J 

" The power of making treaties of peace, like that of making other 
treaties with foreign States, is, or may be, limited in extent by the national 
Constitution. We have already seen that a general authority to make 

* Madison papers, vol. 3, pp. 161S-1528. 

f 14th Ed., pp. 200 et seq. 

% 508 Boyd's 3d English Edition, p. 623. 



42 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

treaties of peace necessarily implies a power to stipulate the conditions 
of peace. * * * The duty of making compensation to individuals whose 
private property is thus sacrificed to the general welfare is inculcated by 
jurists as correlative of the sovereign right of alienating the things which 
are included in the eminent domain." Halleck, quoting both Wheaton 
and Kent, says that the treaty-making power is bound by the fundamental 
law of the constitution of the State, and the only exception made by 
Halleck, Wheaton or Kent as to compensation to individuals is when a 
State is obliged for purposes of peace to cede territory they are not 
necessarily obliged to indemnify the persons whose territory is so ceded. 
It can easily be seen that this is not the same as a sacrifice of property, 
as it is simply a transfer of sovereignty, the ownership of the property 
not being affected, whereas in the case of claims the property right itself 
is not simply relegated for adjudication to courts of another country, but 
is absolutely destroyed. The United States, however, indemnified the 
owners of property which passed from under its sovereignty to that of 
Great Britain by the AVebster-Ashburton treaty of 1842. 



TWELFTH.— The United States relinquished 
all claims for indemnity, national and indi 
vidual, of every kind, of its citizens or sub 
jects, which arose since the beginning- of the 
late insurrection in Cuba, and this includes all 
claims of every nature regardless of whether 
they were connected with the war or not. 

The effort made in this proceeding to avoid responsibility for one 
class of claims is unworthy of the Government of the United States. 
The claims of its citizens against Spain, which the United States 
assumed by Article VII. of the Treaty and agreed to settle and adjudicate, 
included every claim which arose since the beginning of the insurrection 
in Cuba, which date has been generally fixed as February 25, 1895, and 
it is not now within the power of the United States to say that it did not 
agree to adjudicate and settle any claim which arose since that date. 

The relinquishment clause, so far as these claimants are concerned, is 
even stronger than though it had been general, for it includes all claims 
except those which are before a specified date, and the exception in the 
article of claims which arose prior to February, 1895, is evidence on its 
face that certain claims were to be excluded, and therefore, under the prin- 
ciple of expressio unius exclusio altevius, there can be no exceptions to 
the assumption other than those, which were specified in the article, and 
no exception can be presumed on any general principle whatsoever. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 43 

There can be no doubt that in making the treaty of peace the United 
States could have demanded an indemnity for the Maine both for national 
and for individual loss, and even if there were a general rule of inter- 
national law, as asserted by the Attorney-General, that where nothing is 
specified in the treaty, indemnity claims connected with the causes of 
the war pass into oblivion, there is no rule that prevents the victorious 
power from demanding an indemnity for those causes. And if the 
United States Government could have demanded on behalf of its citizens 
an indemnity for the Maine, but instead of so doing, it relinquished all 
claims, national and individual, the presumption must be that there was 
a relinquishment of the claims for the sufferers of the Maine disaster for 
which the American Commissioners could have demanded indemnity 
had they seen fit, and the agreement in the second paragraph of Article 
VII. between the United States and its citizens to adjudicate and settle 
the claims released is sufficiently broad to include each and every claim 
of all classes which could possibly have been demanded by the United 
States from Spain at that time. 

In tlie case of Aspinwall vs. Venezuela, the question of jurisdiction 
was raised in regard to the character of the claims, and the Commission 
assumed jurisdiction on the ground that where all the claims were referred 
to a Commission by a Convention, limited only by a time qualification, no 
question of the character of claims could be raised so as to prevent the 
Commission from taking jurisdiction.* 



THIRTEENTH. Treaties by which rights of 
citizens are affected must be construed liber- 
ally for the individuals. 

On these demurrers the Attorney-General practically admits for 
the purpose of the argument, if. in fact, he does not actually assert, that 
the petitioners at one time had claims, but that they were extinguished 
by the treaty of peace, as against Spain, in the same manner that other 
claims were released, without, however, being similarly assumed by the 
United States; he seeks to find the extinguishment by the forced con- 
struction of a clause in which words have to be interpolated in order to 
sustain his position. 

* In this case, which has already been referred to at length under another point (see 
pp. 1 4 el set]. . ante), the Commission considered carefully the construction of treaties and their 
effect upon rights of individuals, and in regard thereto, after citing Mr. Justice Story in 
Skanht vs. Dupovt (3 Pet., 249); Sauenstein vs. Lynham (100 U. S., 483), ami Grotius 
l>. Jure Belli ac Paris, Book 2, chap. 16), decided that the most liberal exposition and 
construction of a treaty was to be adopted (Moore's History of Arbitration, pp. 3624- 
3626). 



44 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

The familiar rule of interpretation of treaties originally laid down by 
Vattel, which has been cited on other briefs in these cases, and 
which is now an elementary principle of law, is that " It is not allowable 
to interpret that which has no need of interpretation." 

The expression, "all claims of every nature, except those arising 
prior to February 18, 1895," cannot be twisted into the expression "all 
claims which might have passed into oblivion by a treaty of peace had 
they not been expressly saved therefrom by the terms of the treaty." 

In the construction of treaties which operate directly upou individual 
rights, the individual is always protected, and this is especially true 
where the treaty contains provisions confiscating the individual's prop- 
erty and indemnifying him therefor. 

All penal, confiscatory and tariff statutes are construed strictly 
against the Government and all remedial statutes are construed liberally 
for the person whose rights are affected. These are elementary principles 
of law, which apply not only to treaty rights but to all rights of citizens 
which are affected by governmental action.* 

In construing Article VII. of the Treaty of Peace, every presumption 
must be in favor of the American citizen whose claims were sacrificed for 
the purpose of terminating a war, which was causing, outside and be- 
yond the horrors of war and loss of life, expenditures which exceeded 
every three days the total amount asked from this Commission by those 
who suffered from the destruction of the Maine, and this Court will not 
hold that when the Commissioners or the United States were in a po- 
sition to demand indemnity for the ship and individual, and they waived 
all claims of every kind, that any presumption exists that they expressly 
excepted from such demand indemnity for these sufferers, who, more 
than any others, were entitled thereto. 

The Attorney-General now asks the Court to say that that cession 
was for expenses of the war and indemnity to American citizens, except 
those which had in any way occasioned the war, that is, that every claim 
of the United States, national and individual, was covered by this re- 
linquishment, except the particular claims now under discussion. 

The records, however, of the Commission indicate that claims of every 
nature, including the expenses of the war, were under consideration by 
the Commissioners in Paris. On November 28, 1898, Mr. Moore cabled 
to Mr. Hay that "Spain offered to relinquish her sovereignty over Cuba 
and cedes to the United States the Philippines, Porto ltico and Guam as 
compensation for the expenses of the war and as indemnity to American 
citizens for injuries suffered since the beginning of the last Cuban insur- 
. rection." This was directly in line with Secretary Day's letter to the 
Due d'Almodovar del Rio, of July 30, 1898, preliminary to the peace 
negotiations, culminating in the protocol of August 12, 1898, and in 
which he declared that the President was so desirous of exhibiting signal 

* Powers vs. Barney, 5 Blatchf., 202; U. S. vs. Ullman, Fed. Cas. No. 16, 593; Hart- 
ranjt vs. Wiegman, 121 U. S., 609; U. S. vs. WiggleSKorth, 2 Story, 369, 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 45 

generosity that lie would not make any pecuniary demands for indemnity 
for the war. but that he would have to demand the cession of Porto Rico, 
therefor, and for claims of citizens, for injuries to persons and property 
during the war.* 

The Attorney-General now asks this Court to decide that the "'signal 
generosity " of President McKinley was simply, so far as these claimants 
are concerned, a ruthless sacrifice of the chums of American citizens, 
not only in defiance of public sentiment, but also id' Constitutional 
protection. Surely this Court will not so flagrantly misinterpret the 
signal generosity of that man whose every action was not only indicative 
of the highest regard for national welfare, hut also of a deep and tender 
regard for the individual welfare of American citizens, and especially of 
our soldiers and sailors (for was he not one of them himself) and of their 
widows and orphans. Let the Attorney-General read, if he will, the words 
of our martyred President, about the destruction of what he called our 
"noble vessel" while in the Harbor of Havana ••on a mission of peace 
and rightfully there,"' and of the "sorrow to the nation and grief to the 
home." and then let him — if he dare — repeat his assertion to this Court 
that William McKinley, in announcing the terms of peace to a van- 
quished foe. when he was in a position to dictate terms which would pro- 
tect the just claims of American citizens, cither forgot to include, or 
expressly excluded, the claims of the sailors and the widows and orphans 
who had so terribly suffered in the destruction id' our noble warship. 



FOURTEENTH.— The claims extinguished 
by the treaty of 1898, and described as "all 
claims for indemnity, National or individual, 
of every kind," necessarily included the 
claims of these petitioners. 

The intention of the treaty of Paris to include all claims whether 
they were connected with the cause of the war or not is evidenced by the 
use of the descriptive words '"all claims for indemnity. National or 
individual, of every kind." It is impossible to conceive of any broader 
description and there can be no doubt (bat the claims are " individual 
claims for indemnity" and were included in the relinquishment. 

"The President, desirous oi exhibiting signal generosity, will not now put forth any 
demand for pecuniary indemnity. Nevertheless, he cannot be insensible to the losses 
and expenses of the United States incident to the war, or to the claims of our citizens for 
injuries to their persons and property during the late insurrection in Culm, lie must 
therefore, require the cession to the United States, and the evacuation liy Spain, of the 
Islands of l'orto Rico and other islands now under the sovereignly of Spain in the West 
Indies, and also the cession of an Hand in the Ladrones to lie selected by the United 
States" (U. S. For. Bel., 1898, p. 821). 



46 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

The distinction between " National " and "' individual " claims against 
foreign governments has been discussed on many occasions and there can 
be no doubt that "National " claims for indemnity are those for which 
the United States can collect and retain indemnity for losses sustained by 
the government in property and expense, or when pecuniary damages are 
demanded, for insult to the flag; while "individual " claims are those 
which citizens of this country have against a foreign government for 
loss and damages actually sustained and for which a foreign government 
is responsible. 

Some confusion has at times arisen from the fact that claims of citizens 
of any country cannot be enforced against a foreign government except 
through the Government of the injured party, and when a government 
takes up and presses such claims of its citizens it makes their individual 
grievances a National matter. 

In such sense the claim of the individual may become the basis of a 
national demand, but in no sense does the claim ever lose its character of 
being the personal or individual property right of the claimant. 

In all cases in which injury to public vessels is involved, national and 
individual claims arise; both are wholly under governmental control 
as against the foreign country, but as to the national claim, the govern- 
ment can release the claim for whatever amount it is willing to accept, 
while as to the individual claims, it must compensate those whose prop- 
erty rights it has sacrificed for the public good. 

This subject has already been treated at length under another point 
and it will only be briefly referred to again.* 

The fact is tho words " national " and " individual " were used in 
the treaty in the same way as the words "of every kind," so that Spain 
should be released from every possible claim which could be presented by 
the United States, either for itself or for its citizens. The words 
national and individual are not used in the adjudication clause; by that 
the United States simply agreed to adjudicate and settle the claims of its 
citizens against Spain which were relinquished. If any citizen was 
prejudiced by the relinquishment of a claim he is protected whether his 
claim is one in which no other person is interested, or whether other 
persons or the Government of the United States is also interested in it. 
Counsel for the Government have dwelt at great length on the distinc- 
tion between national and individual claims. The point is not involved 
in the jurisdiction of this Court. Every claim of every citizen whether 
it had to be presented through the Government or not is included in the 
adjudication clause of Article VII. f 

* See pp. 21, 22, aide. 

| The following extract from the opinion of Davis, /., in Gray vs. United States, one 
of the leading French Spoliation cases decided by the Court of Claims in 1886 (21 Ct. of 
CIms., 340), throws a great deal of light on the terms National and individual when ap- 
plied to claims against foreign governments. On pp. 391-8, Judge Davis says : 

" The word ' National ' has been largely used in argument in allusion to the different 
kinds of claims at different periods brought into the discussion, and is a convenient word 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 47 

One test which is frequently although not always applied to ascertain 
whether claims are individual or national is the disposition of the indem- 
nity received. Any money received by the United States for indemnity 
for a national claim must of course eventually find its way into the 
treasury of the United States, whence it can only be withdrawn under 
sonic Congressional authority. On the other hand indemnities for 
individual claims are always paid to the United States, but they are as 
a general rule received by the Executive Department of the Government, 
and paid over by it directly to the parties entitled thereto. This was the 
method adopted in regard to the Virginius indemnity paid by Spain, 
the Huesken indemnity paid by Japan, the Baltimore indemnity paid 
bv Chile. Many other instances might be cited, but the members of the 

Court are too familiar with this practii I' the Government to render 

any further citations necessary. 

It sometimes happens, however, that when both National and indi- 
vidual claims are included in one sum, the amount is covered into the 

if clearlv understood in the connection in which it is used. All claims are ' National' in 
the sense of the jus gentium, for no Nation deals as to questions of tort with an alien indi- 
vidual ; the rights of that individual are against his Government, and not until that Gov- 
ernment has undertaken to urge his claim— not until that Government has approved it 
as at least prima facie valid— does it become a matter of international contention; then, 
by adoption, it is the claim of the Nation, and as such only is it regarded by the other 
country. The name of the individual claimant may be used as a convenient designation 
of the particular discussion, but as between the nations it is never his individual claim, 
but the claim of his Government founded upon injury to its citizen. Nations negotiate 
and settle with nations; individuals have relations only with their own Governments. 
Other claims, sometimes the subject of argument, rest upon injury to the State as a whole ; 
of these an apt illustration is found in the so-called ' indirect ' claims against (ireat 
Britain, disposed of in the arbitration of 1872. and in the claims advanced by France for 
injury caused by non compliance with the treaties of 177s. 

"Thus, while all claims urged by one nation upon another are, technically speaking, 
'national,' it is convenient to use colloquially the words 'national' and 'individual,' as 
distinguishing claims founded upon injury to the whole people from those founded upon 
injury to particular citizens. Usiug the words in this sense, it appears that in the nego- 
tiations prior to the treaty of 1800. and in effect in the instrument itself, national claims 
were advanced by France against individual claims advanced by the United States. 
France urged that she had been wronged as a nation; we urged that our citizens' rights 
had been invaded. If ' national ' claims had been used against. ' national ' claims, and the 
one class had been set off against the other in the compromise, of course the agreement 
would have been final in every way, as t lie surrender and the consideration thereto!- 
would have been national, and no rights between the individual and his own Government 
could have complicated the situation. But in the negotiation of 1800 we used ' individ- 
ual ' claims against 'national' claims, and the set-ofl was of French national claims 
against American individual claims. That any Government has the right to do this, as it 
has the pght to refuse war in protection of a wronged citizen, or to take other action, 
which, at the expense of the individual, is most beneficial to the whole people, is too clear 
for discussion. Nevertheless, the citizen whose property is thus sacrificed for the safety 
and welfare of his country has his claim against that country ; he has a right to compensa- 
tion, which exists even if no remedy in the courts or elsewhere be given him. A right 
often exists where there is no remedy, and a most frequent illustration of this is found in 
the relation of the subject to his Sovereign, the citizen to his Government. 



48 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

treasury and an Act of Congress passed directing the amounts to be paid 
to individuals to be paid out of the treasury. 

Had the United States demanded and collected indemnity from Spain 
for the Maine, undoubtedly a lump sum would have finally been agreed 
upon and paid for all National and individual claims; the United States 
would have divided the amount received into two parts, one for the 
value of the vessel and the other for the individual sufferers, which 
would in its turn have been distributed amongst those entitled thereto 
either by Act of Congress or by some other method determined by Con- 
gress. The treaty settling the matter, however, might have provided for 
the payment to the United States of one sum for the loss of the ship and 
another for the sufferers, as well a method for the distribution of the 
latter as was done in the cases of the Virginius and the Baltimore. In 
any event the individual claims would have been paid, although the 
entire amount would have been paid to the United States. 

A notable instance in which national and individual claims arose was 
that of the Wyoming* affair, for which the United States received a 
large indemnity from Japan; after this fund had been held as special 
trust for many years, it was covered into the Treasury; the amount of 
the award which represented punitive damages for insult to the flag was 
given back to Japan; indemnity was retained, however, for all expenses 
of the Government and for each sailor and marine on the vessel attacked, 
and all payments were made from the Treasury by Act of Congress. \ 

In the Chile-Ball i more affair the United States could have demanded 
punitive damages for the national insult, but true to the doctrine an- 
nounced in the Wyoming matterj it made no pecuniary demand therefor, 
except a suitable apology ; but Chile was obliged to pay to the United States 
for the families of the murdered men who wore the uniform of the United 
States an indemnity -'proportionate," as Secretary Foster expressed it, 
" to the gravity of the offense. "§ 

In the Virginius affair of 1871, the National element of the claim 
against Spain and the right of the individual sufferers to indemnity was 
kept distinct ; the former was eventually waived by the United States, 
but Spain was obliged to pay $80,000 to the United States for relief of 
the families of the sufferers on board of that vessel. || 

In the course of the many legislative debates, reports of committees 
and the judicial decisions on the French Spoliation claims, the distinction 
between the national and individual claims was frequently alluded to. 

The only report which will be referred to at length is what may 

* See speciat sub-heading to Sixteenth Point, post. 
\ Act of February 22, 1883, 22 Stat, at L., p. 42. 
J Sen. Doc. 231, 56th Cong., 2d Sess., Part I. p. 

§ U. S. For. Rel., 1892. under Chile, and see case referred to at length under special 
sub-head to Sixteenth Point, p. 52, post. 

I U. S. For. Rel., 1875, pp. 1250-1251. 



ARGUMENT OF CIIAS. II. BUTLER IN MAINE CASKS. 49 

well be called the famous report on these claims of Charles Sumner,* in 
which he so ably urged the payment of debts which he declared were 
justly due to American citizens, and which had been sacrificed by the 
Government for the welfare of the nation. It was in the course of that 
report that he quoted the earnest wish of Governeur Morris, "that 
all our treaties, however onerous, may lie strictly fulfilled according to 
their true intent and meaning," which he says was followed in language 
foreign to the phrases of diplomacy, by picturing the honest nation as 
that which. like the honest man, 

" Hath to its plighted faith, and vow forever stood; 
And though it promised to its loss, yet makes that promise good." 

Part IV. of this Report is devoted to a careful analysis of claims of 
this nature and distinction between them and national claims. On 
page 300 he shows that when claims of this nature are taken by the 
Government in making a treaty the provisions of Article V. of Amend- 
ments that private property cannot be taken for public use without 
compensation are clearly applicable thereto. 

This report, as it was adopted and twice readopted, stands as the clear 
cut expressions of that Committee of the Senate, which has always hi en 
composed of the most eminent authorities on international and constitu- 
tional law in that body: it asserts the moral and legal obligations of the 
Government of the United States to pay its obligations to itsown citizens 
when assumed by a treaty with a foreign Government, and it was adopted 
as the basis of the legal decisions rendered in the French Spoliation cases. f 

•Senate Document 231, 5ith Congress, 2d Session. No. 41. Parti. The report 
commences at p. 274. It was adopted April 4, 1864, and was readopted March 2, 1867 

(p. 378), and readopted January 17, 187o (p. 383). 

f The leading French Spoliation oases are as follows : 

Holbrook vs. United Stales, U. S. Ct. of Claims, 18S4; 21 Ct. Claims, 434, 

Davis, J. 
Cashing vs. United States, U. S. Ct. of Claims, 1886; 22 Ct. Claims, I, 

Davis, .7. 
Gray vs. United States, U. S. Ct. of Claims. 1886; 21 Ct. Claims, 340, 

Davis, J. 
1/,,.,/,,-r vs. United States, U. S. Ct. of Claims, 1887; 22 Ct. Claims. 408, 

Davis, J. 
Tin Brig William, V. S. Ct. of Claims, 188S ; 23 Ct. Claims 201, Soofield, 

J. Also reported under the names of Haskins, Adam.?, Blagge vs. 

United States. 
11, e Ship Betseii, IT. s. Ct. of Claims, lsss ; 23 Ct. Claims, 277, Nott, ,/. 
The Ship Jane, U. S. Ct. of Claims, 1889; 24 Ct. Claims, 74, Nott,/. 
The Leghorn Seizures, V. S. Ct. of Claims. 1892; 27 Ct. Claims, 221. Nott, /. 
The Brig Venus, V. S. Ct. of Claims. 1892; 27 Ct. Claims, lie, Norr, J. 

Also reported under Cole vs. United Stat,s. 

The Ship Tan. U. S. CI of Claims. 1893 ; 2'.' Ct. Claims, OS, No'lT. ./. 

TheShip Ganges, U. S. Ct. of Claims, 189ii; :;l Ct. claims, 17fl, Dams, ./. 
The Ship star, I. S Ct. of Claims, 1900; 36 Ct. claims, 387, Wki.i.on, J. 
The Schooner Henry and Gus/avus. V . S. Ct. of Claims, 1900 ; 35 Ct. Claims, 
393, Wkldon, /. 



50 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

FIFTEENTH.— A moral duty rested upon 
the Government of the United States to pre- 
sent these claims to Spain, and it could not re- 
lease them without assuming them. 

A government may or may not present the claims of its citizens to a 
foreign government, but if for politic or Governmental reasons, it deter- 
mines not to present claims that are proper, it is bound to assume the 
claims and indemnify the citizens whose claims are thus either sacrificed 
or rendered uncollectible.* This rule was laid down in the French 
Spoliation cases and has too often been asserted by writers on inter- 
national law to require many citations to support it.f 

The Ship Juliana, U. S. Ct. of Claims, lPun ; 35 Ct. Claims, 400, Peelle, ./. 

The Ship Parkman.U. S. Ct. (if Claims, 1900 ; 35 Ct. Claims, 406, Weldon, J. 

The Ship Apollo, U. S. Ct. of Claims, 1900 ; 85 Ct. Claims, 411, Peelle, J. 

The Ship Concord, V. S. Ct. of Claims, 1900; 35 Ct. Claims, 432, Nott, Ch. J. 

Balch vs. Blagge, U. S. Sup. Ct., 1896, 162 U. S., 439, Fuller, Ch. J. 

U. S. vs. Gillial, U. S. S. C, 1896; 164 U. S., 42, Peokham, J". 
For a list of French Spoliation awards reported to Congress by the Court of Claims, 
see 23 Ct. Claims, 524; 24 Id., 560; 25 Id., 631 ; 26 /./.. 637. 
* See also pp. 21, 22, ante, of Ihis brief. 

f On page 390, 21 Court of Claims, Davis, J., says in his opinion in Cray vs. United 
States, which has just been referred to: 

" The judiciary has seldom occasion to deal with the abstract right of the citizen 
against his government, for in a case raising such a question the individual is without 
remedy other than that granted him by the Legislature. The question of right, therefore, 
is usually passed upon by the political branch of the Government, leaving to the courts 
the power only to construe the amount and nature of the remedy given. Still judicial au- 
thority is not wanting in support of the position that by the agreement with France the 
United States became liable over to their individual citizens. Lord Truro laid down in 
the House of Lords as admitted law, 

" 'That if the subject of a country is spoliated by a foreign government he is entitled 
to redress through the means of his own Government. But if from weakness, timidity or 
any other cause on the part of his own Government no redress is obtained from the foreign 
one, then he has a claim against his own country' (De Bode v. The Queen, 3 Clarke's 
House of Lords, 464). 

"The same position is sustained by that eminent writer upon the public law, 
Vattel, who held that while the sovereign may dispose of either the person or property of 
a subject by treaty with a foreign power, still, * as it is for the public advantage that he 
thus disposes of them, the State is bound to indemnify the citizens who are sufferers by 
the transaction.' " 

See also extract from Grotius, cited on page 709, § 248, vol. 2, Wharton's Int. Law 
Digest: "But we must also observe this, that a king may, two ways, deprive his sub- 
jects of their rights, either by way of punishment or by virtue of his eminent domain. 
But if he do it the last way it must be for some public advantage, and then the subject 
ought to receive, if possible, a just compensation for the loss he suffers out of the common 
stock " ;Grot., War and Peace, 333, f. 2, ch. 14, § 7). 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASI 51 

In the case of the General Armstrong, destroyed in LS 14 by British 
naval neutral vessels in the harbor of Fayal, after many attempts to 
compel Portugal to pay the claim, a treaty was made in 1851 to refer 
"the claim presented by the American Government in behalf of the cap- 
tain, officers and crew." of the vessel.* The Emperor Louis Napoleon 
was selected to act as arbitrator. He decided against the United States, 
on the ground that the officers ami crew of the General Armstrong had 
resisted the attack instead of having invoked and relied on the protection 
which the neutral powers should have afforded. Congress afterwards 
appropriated the amount of the claim and paid it on account of certain 
errors in submitting the case. 

The General Armstrong case is in line with these eases in one respect, 
which should lie carefully noted. Many years before the amount of the 
claim against Portugal was allowed and paid, Congress had appropriated, 
and distributed among the crew of the vessel, $10,000 for prize money 
as a relief measure on the part of the United States. 

The United States has never abandoned claims of its citizens against 
a foreign government. On the contrary, it has urged the payment of 
such claims at the very point of the bayonet and the mouth of the 
cannon, and if the Attorney-General should succeed on these demurrers 
it would be tantamount to obtaining a decision of this Court that the 
United States, in making the treaty ol peace with Spain, abandoned not 
only the claims of its citizens, which were so just that, as the Attorney- 
General himself declares, they were the cause of a war costing hun- 
dreds of millions of dollars and thousands of lives, but it also aban- 
doned its time honored and well adhered to policy of never sacrificing 
the just claims which any of its citizens have against any foreign 
government. 



SIXTEENTH. In construing- Article VII. 
of the Treaty of Paris, the presumption must 
be in favor of the claimants, as they are officers, 
sailors and marines, or the widows and 



• Art. II. of the Treaty of 1861 with Portugal is as follows: "The high contracting 
parties, not being able to come to an agreement upon the question of public law involved 
in the case of the privateer brig, General Armstrong, destroyed by British vessels in the 
waters of the island of Fayal, in September. 181 I, Her .Most Faithful Majesty has pro- 
posed ami ibe United Male- ,,| America have consented, that the claim presented by (lie 
American Government, in behalf of the captain, officers and crew of the said privateer, 
be submitted to the arbitrament of a sovereign potentate, or chief of some nation in amity 
with both the high contracting parties." (U. S. Treaties .ml Conventions, Ed. 1889, p. 
897.) Kor the acts of Congress indemnifying the owners ami other matters connected 
with this case >ee page 59 of ibis brief, post : see also '2 Wharton's Int. Law Uigest, § 248, 
p. 714, for list of documents relating to case. 



52 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

orphans of officers, sailors and marines of the 
Navy of the United States. 

The United States has always protected its soldiers and sailors in 
foreign lands and has never made any distinction in demanding indem- 
nity for injuries received in foreign lands between soldiers, sailors and 
other officials and citizens who have not held official positions. 

It will be impossible to review all the occasions on which our soldiers, 
sailors and representatives in diplomatic and consular service have been 
ill treated in foreign countries in time of peace, and the United States 
has compelled the foreign nation to indemnify them for the injuries 
which they have sustained. In this paint it is purposed simply to refer 
briefly to a sufficient number of such cases to show that it is not unusual 
for the United States to collect indemnity under such circumstances. 

Our soldiers and sailors, officers, crew and marines, assume all risk 
of danger and of death when, in the course of their duty, they are at- 
tacked by an open enemy engaged in actual hostilities, but while they 
are on a mission of peace and rightfully in a friendly harbor, they are 
entitled to every possible protection which should be accorded to any 
other citizen of this country, and if they are killed, their government, so 
long as it classes itself amongst self-respecting governments, will insist 
upon indemnity for such acts alike to soldiers and sailors as to other 
citizens as Mr. Blaine demanded it from Chile in the Baltimore case. 
and as Secretary Foster declared in the same case; the indemnity must 
be proportionate to the gravity of the affair when the men wear the uni- 
form of the United States.* 

The Baltimore Case. 

It is not necessary to seek for precedents prior to the present decade. 
In 1891, when our sailors from the Baltimore] were attacked in Val- 

* The claimants under this point will cite the following cases; there are undoubtedly 
many other eases in which similar demands have been made and collected: 
The Baltimore, U. S. vs. Chile, 1891, see p. 52. 
77je Chesapeake Sailors, IT. S. vs. Great Britain, 1807, see p. 57. 
The General Armstrong, U. S. VS. Portugal, 1814, see p. 59. 
The Wyoming, U. S. vs. Japan, 1 8fiS, seep. 59. 
The Water Witch, U. S. vs. Paraguay, 1855, see p. 60. 
Attache Huesken's dtath, IT. S. vs. Japan, 18til, see p. 61. 
Spanish Consuls in New Orleans and Keg West, Spain vs. V. S., 1851, 

see p. 61. 
Col. Margery's death, Great Britain vs. China, 1875, see p. 62. 
British Sailors in Japan, Great Britain vs. Japan, 1862, see p. 62. 
The French Corvette Dupleiz, France vs. Japan, 1868, see p. 63. 

| President Harrison in his 3rd Annual Message, Dec. 9, 1891, 9 Richardson, 185, 
says: 

" On the 16th of October, 1891, an event occurred in Valparaiso so serious and tragic 
in its circumstances and results as to very justly excite the indignation of our people and 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 53 

paraiso, Hon. James G. Blaine, the then Secretary of State, placed the 
right of this country to demand indemnity for men who were in our 

Naval and Military employ upon the duty of relf- respecting nations to 
protect their representatives and those who wore their uniform. On 
January 21, L892, in his instructions to Mr. Egan ho said, in words of 
no equivocal meaning : 

"No self-respecting government can consent that personsin its 
service, whether civil or military, shall be beaten and killed in a 
foreign territory in resentment of acts done by or imputed to 
their government without exacting a suitable reparation The 
Government of the United States has freely recognized this prin- 
ciple, and acted upon it, when the injury was done by its people 
to one holding an official relation to a friendly power, in resent- 
ment of acts done by the latter. In such ease the United States 
has not sought for words of the smallest value or of" equivocal 
meaning in which to convey its apology, but has condemned such 
acts in vigorous terms and has not refused to make other 

adequate reparation."* 

lo call for prompt and decided action on the pari of this Government. A considerable 
number of the sailors of the I". S. s, S. Baltimore, then in the harbor at Valparaiso, being 
upon shore leave and unarmed, were assaulted by armed men nearly simultaneously in 
different localities in the city. One petty officer was billed outright and seven or eight 
seamen were seriously wounded, one of whom lias since died. So savage and brutal was 

the assaull that several of our sailors received re than two and one as many as eighteen 

stab wounds. An investigation of the affair was promptly made by a board of officers ol 
the Baltimore, and their report shows that these assaults were unprovoked, that our men 
were conducting themselves in a peaceable and orderly manner, and that some of the 
police "!' the city look part in the assault and used their weapons with fatal effect, 
while a lew others, witli some well disposed citizens, endeavored to protect our men. 
Thirty-six of our sailors were arrested, and some of them, while being taken to prison 
were cruelly beaten and maltreated. The fact that they were all discharged, no criminal 
charge being lodged against any one of them, shows very clearly that they were innocent 
of any breach ol the peace. 

"So far as 1 have yet been able to learn, no other explanation 
of this bloody work has been suggested than that it had its origin 
in hostility to those men as sailors of the United States, wearing 
the uniform of their Government, ami not in any individual act 

or personal animosity." See also Special Mcssa u c ol President Harrison to 
Congress on tliis subject of January 25, 1892, 9 Richardson - Messages, pages 215 •/ seg , 

and note especially his remarks on page 218 as lo the effect of assaults on sailors on shore 
leave. These remarks are quoted at length in a subsequent note under this point. 
* The remarks of Mr. Blaine were preceded by the following statement: 
" I am directed by the President to say to you that lie has given careful attention to 
all thai has been submitted h\ the Government of Chile touchiug the affair of the assaull 

upon the crew of the U. S. S. Bali • . in the City of Valparaiso, on the evening of the 

16th of October last, and to the evidence of the officers and crew of that vessel, and ol 
some other- who witnessed the affray, and that his conclusions upon the whole case are 
as follows: 

"First. That the assaull is not. relieved of the aspect which the early information of the 
event gave to it, viz.: That ol an attack upon the uniform ol the I . S. Navy, having its 
origin and motive in a feeling of hostility to this Government, and not in any act of the 
sailors or ol any ol them. 



54 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

The prompt demand made by Secretary Blaine resulted in a recogni- 
tion by Chile of the claim, and it was subsequently settled, not, however, 
until the great statesman who had so ably enunciated many American 
principles had passed to his final rest. The negotiations were concluded 
by his successor, Secretary of State John W. Foster, who, in his dispatch 
of July 1st, L892, to Mr. Egan, declared that the gravity of the offense 
was increased by the fact that the men wore the uniform of the United 
States.* Chile finally paid $75,000 indemnity! to the men who were 
injured and for the families of those who were killed. No pecuniary 
demand for National insult was made. 

On the argument of the demurrers, counsel, closing the case for the 
Government, entered into an elaborate distinction as to the difference 
between the case of the Baltimore and the case of the Maine. He main- 

" Second. That the public- authorities of Valparaiso flagrantly failed in their duty to 
protect our men, and that some of the police and of the Chilean soldiers and sailors were 
themselves guilty of unprovoked assaults upon our sailors before and after arrest. He 
thinks the preponderance of the evidence and the inherent probabilities lead to the con- 
clusion that Riggin was killed by the police or soldiers. 

" Third. That he is therefore compelled to bring the case back to the position taken 
by this Government in the note of Mr. Wharton of October 28 last (a copy of which you 
will deliver with this), and to ask for a suitable apology and for some adequate reparatioD 
for the injury done to this Government. 

" You will assure the Government of Chile that the President has no disposition to be 
exacting or to ask anything which this Government would not, under the same circum- 
stances, freely concede. He regrets that, from the beginning, ttie gravity of the questions 
involved has not apparently been appreciated by the Government of Chile, and that an 
affair in which two American seamen were killed and sixteen others seriously wounded, 
while only one Chilean was seriously hurt, should not be distinguished from an ordinary 
brawl between sailors in which the provocation is wholly personal and the participatmn 
limited" (U. S. For. Rel., 1891, p. 307). 

* " Mr. Foster conveys to Mr. Egan the gratification of the President at the desire of the 
Chilean Government, expressed in Mr. Egan's telegram of the 23d of June, and expresses 
the belief that the indemnity to the relatives of the seamen killed, 
and to the men who survived injuries received while wearing the 
uniform of the United States, shall be proportionate to the grav- 
ity of the affair. He requests information by telegram as to the views of the 
Chilean Government in regard to prompt compensation." (U. S. For. Rel.. 18112, p. 57.) 

f [From Mr. Egan to Secretary Foster.] 
U. S. For. Rel., 1892, p. 64. 

" Legation ok the United States, 
No. 331. " Santiago, July 16, 1892. 

(Received August 22). 
" Si R; — I have the honor to refer to my No. 326 of 12th instant and to say that on 
the 14th iustant I communicated verbally to the minister of foreign relations the purport 
of your telegram of 12th instant, in regard to the offer of compensation in the Baltimore 
case, at which he expressed much pleasure. Today I received a note from him dated 13th 
instant, translation of which is herewith enclosed, formally, on behalf of his Government, 
placing at my disposal the sum of $75,000 gold, with the request that it be distributed 
anion"- the families of the two men killed and those who received personal injuries in the 
attack of 1 6th October last in Valparaiso," 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 55 

tained that the United States was justified in demanding indemnity for 
sailors who were killed on shore leave, but that it would not have been 
justified in demanding indemnity had the sailors been on duty. In faet, 
he went so far as to say, in answer to a question propounded by claim- 
ants' counsel, that had the riot in Valparaiso occurred at the quay and 
that some of the men who were killed had been on shore leave and some 
of them had been on duty in the Hull i man's cutter, the United States 
could have demanded indemnity for those who were killed on the quay, 
but not for those who were killed in the cutter.* Had the occurrence 
actually taken place in that manner, counsel for claimants has grave 
doubts whether Mr. Blaine would have split hairs with such neat dis- 
tinction, and can hardly conceive that he would have interpolated into 
the dispatch, just quoted, the words " while there on shore leave, 
although the United States will permit them to lie killed with impunity 
while they are on duty." 

An entirely different view of the Baltimore case from that of the 
Attorney-General was taken by President Harrison. Bis special mes- 
sage to Congress of January 25, 1892, in regard to the relations with 
Chile in regard to this affair completely undermines the position of the 
Attorney-General in regard to the distinction between men on shore leave 
and men on duty, f The imperative demand which was made on Chile 

* During the closing argument made by Mr. Russell on behalf of the Government the 
following colloquy between counsel occurred; it appears on page 13 of Mr. Russell's 
printed argument: 

" Mr. Butler. I would like to ask you this question : Whether your argument goes so 
far that if a cutter had taken the seamen ashore for shore leave, and after they had gotten 
on the dock ami severed from the cutter an accident had happened in such a way thai 
some of the men on the dock had been killed and some of I he men in the cutter, do you 
contend that those men who were in the cutter would have had no claim for indemnity 
and those on the dock would have had a claim'.' 

" Mr. Russell. If the cutter is regarded as a part of the man-of-war I answer 
accordingly." 

fin this message (H Richardson, 217 el seq.) Mr. Harrison, after alluding lo the 
remarks in his annual message about the Baltimore, which have just been quoted, says: 
"I am still of the opinion that our sailors were assaulted, beaten, stabbed and killed not 
for anything they or any of them had done, but for what the Government of the United 
States had done or was charged with having done by it- civil officers and naval command- 
ers. If that be the true aspect of the ease, the injury was to the Government, of the 
United States, not to the poor sailors who were assaulted in a manner so brutal and so 
cowardly. 

" Before attempting to give an outline of the facts upon which this conclusion rests 
I think it right to say a word or two upon the legal aspect of t he ease. The Baltimore 
was in the harbor of Valparaiso by virtue ol that general invitation which nations are 
held to extend to the war vessels of other powers with which they have friendly relations. 
This invitation, I think, must be held ordinarily to embrace the privilege of such com- 
munication with the shore as is reasonable, necessary and proper for the comfort and con- 
venience of the officers and men of such vessels. Captain Schley testifies that when bis 
vessel returned to Valparaiso on September 1 I the city officers, as is customary, extended 
the hospitalities of the city to his officers and crew. It is not claimed that every 



5'i BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

was due to the fact that Mr. Harrison and his Cabinet considered that 
the men, while on shore leave, were entitled to protection from all 
assaults animated by local hostility to the United States, and that it was 
as much a national insult as if the Minister or Consul or the flag itself 
had been insulted, and was far more serious than though a mere citizen 
had been injured, and this Government was bound to take action upon 
it as though it had been an attack upon its own sovereignty. 

If the views expressed by counsel for the Government in these cases 
had been adopted by Mi-. Harrison and his Cabinet, this National phase 
of the case would have deprived the sailors themselves of all personal 
indemnity or compensation except such as the United States should 
gratuitously afford them by act of Congress out of the Treasury. In 
fact, the offence was declared to be equivalent to an insult to the Hag, 
and the injury wascharacterized as one to the Government of the United 
States and not to the sailors. The demand, however, was made and 
collected as indemnity for the sailors for the injuries received, exactly 
as in the case of other citizens, and .Mr. Harrison did not consider that 
because the case involved National elements, the individual sufferers 
could be deprived of their just claims for their indemnity; the money was 
paid by Chile as indemnity for the individuals;* it never went into 
the treasury of the United States, but was distributed by the Secretary 
of the Navy amongst the persons equitably entitled thereto. 

The Attorney-General's position has no foundation whatever either 
in law or in fact, for it is a matter of history that the United States has 
demanded and collected indemnity for its citizens who have been killed 
while in discharge of their duty in exactly the same manner as they 
have demanded and collected such indemnity for citizens pursuing 
their ordinary vocations as appears from the Baltimore and other cases 
cited in this point. 

personal collision or injury in which a sailor or officer of such vessel visiting the 
shore may be involved 1 raises an international question, hut I am clearly of the opinion 
that where such sailors or officers are assaulted by a resident populace, animated by hos- 
tility to the government whose uniform these sailors and officers wear, and in resentment 
to acts done by their Government, not by them, their nation must take notice of the event 
as one involving an infraction of its rights and dignity, not in a secondary way, as where 
a citizen is injured and presents his claim through his own Government, but in a primary 
way, pi ecisely as if its ministers or consul or the flag itself had been the object of the 
same character of assault. 

"The officers and sailors of the Baltimore were in the harbor of Valparaiso under the 
orders of their Government, not by their own choice. They were upon the shore by the 
implied invitation of the Government of Chile, and with the approval of their commanding 
officer; and it does not distinguish their case from that of a consul that his stay is more 
permanent or that he holds the express invitation of the local government to justify his 
longer residence. Nor does it affect the question that the injury was an act of a mob. If 
there had been no participation by the police or military in this cruel work, and no neglect 
on their part to extend protection, the ca^e would still be one, in my opinion, when its 
extent and character are considered, involving international rights." 

* See letter from Mr. Egan to Mr. Foster of July 16, 1892, already quoted in full in 
the notes to this point. 






ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 57 

The Chesapeake Sailors. 

It is, of course, unnecessary to recite the details of the attack of the 
British man-of-war Leopard on the United States frigate Chesapeake off 
Hampton Eoads, in June, 1807. It is a part of the history of our navy 
and of our country.* The commanding officer of the Leopard claimed 
that certain seamen who had deserted from British vessels were on the 
Chesapeake, and he demanded their delivery. They were American 
citizens and the demand was refused. The Leopard opened fire upon the 
Chesapeake, which was itnprepared for an engagement, and was obliged 
to surrender after a brief resistance and allow the men demanded to be 
taken from her. During the engagement three men on the Chesapeake 
were killed, eighteen wounded and four captured. The attack was one 
against the sovereignty of the United States to the last degree, f There 
was no personal animosity against the individual sailors; the demand for 
the delivery to the British man-of-war of the seamen was formally made 
by a naval officer of Great Britain upon a naval officer of the United 
States. 

A demand was immediately made by the United States Government 
upon Great Britain, I and Mr. James Monroe, then Minister to England, 
was instructed to demand that ample reparation be made without diffi- 
culty or delay. After a great deal of diplomatic negotiation which fol- 
lowed this demand, Mr. Erskine, the British Minister, offered, in April, 
1809, to have his Government formally disavow the act, "restore the 
men forcibly taken out of the Chesapeake," and, if acceptable to the 
American Government, " make a suitable provision for the unfortunate 



* For the report of the Naval Court of Inquiry on the Leopard- Chesapeake affair, see 
3 Am. State Papers, 6, 21, 22. 

t In referring to the matter President Jefferson said, S Am. State Papers, 24: "At 
length a deed, transcending all we have hitherto seen or suffered, brings the public sensi- 
bility to a serious crisis, and our forbearance to a necessary pause. A frigate of the United 
States, trusting to a state of peace, and leaving her harbor on a distant service, has been 
surprised and attacked by a British vessel of superior force, one of a squadron then lying 
in our waters and covering the transaction, and has been disabled from service, with the 
loss ol a number of men killed and wounded. This enormity was not only without provo- 
cation or justifiable cause, but was committed with the avowed purpose of taking- from a 
ship of war of the United States a part of her crew ; and that no circumstances might be 
wanting to mark its character, it had been previously ascertained that the seamen 
demanded were native citizens of the United States." The foregoing is quoted from the 
President's proclamation of July 2, 1807, requiring British vessels to depart from the 
waters of the United States as the result of the Leopard's attack on the Chesapeake. 

t See Instructions Secretary of Slate Madison to .tames Monroe, then Minister to 
England of July 6, 1S07, 3 Am. State Papers, 183. The words used (bottom of p. 184) are 
almost identical with those of Secretary Sherman : " The President has the right to expect 
from the British Government, not only an ample reparation to the United States in this 
case, but that it will be decided without difficulty or delay." In case suitable reparation 
was not offered he was instructed to " take proper measures for hastening home." 



58 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

sufferers."* No question whatever was raised by either government as 
to the right of the Government of the United States to demand indem- 
nity for sailors killed while they were on duty, defending their vessel 
against an unwarranted attack by the war vessel of a power at peace 
with the United States. Nor was the point, so persistently argued by 
the Attorney-General, as to the sailors simply being an integral part of 
the ship equipment and crew, and therefore not entitled to personal in- 
demnity, ever suggested by either government. 

The United States accepted this offer, t but the British Government 
disavowed it. In November, 1811, however, the British Government 
authorized its minister at Washington to renew the offer, including "a 
suitable pecuniary provision for the sufferers in consequence of the 
attack on the Chesapeake, including the families of the seamen who 
unfortunately fell in the action."! This proposition was accepted by 
the United States. § 

The correspondence, a part of which is printed in the notes to this 
section, shows that the United States, even in its days of infancy, did 
not hesitate to demand indemnity for its sailors when they were wrong- 
fully killed or injured, although the deaths and injuries were the result 
of a direct attack upon its sovereignty, as it necessarily was when one of 
its own war vessels was fired upon by the war vessel of another power; in 
fact, the attack was of such a nature as to justify its being referred to in 
the diplomatic correspondence as a naval engagement. 



* Mr. Erekine to Mr. Smith, April 17, 1809, and April 8, 1803, 3 Am. Stale Papers, 
295, 297. 

f Mr. Smith to Mr. Erskine, April 17, 1809, 3 Am. State Papers, 296. 

1 Mr. Foster (British Minister) to Mr. Monroe (Secretary of State): "Washington, 
Nov. 1, 1811. * * * (The propositions were as follows) : 

" First. That I am instructed to repeat to the American Government the prompt dis- 
avowal made by His Majesty (and recited in Mr. Erskine's note of April 17, 1S09, to Mr. 
Smith), on being apprized of the unauthorized act of the officer in command of his naval 
forces on the coast of America, whose recall from a highly important and honorable com- 
mand immediately ensued, as a mark ol His Majesty's disapprobation. 

" Secondly. That I am authorized to offer, in addition to that disavowal on the part 
of His Royal Highness the immediate restoration, as far as circumstances will admit, of 
the men, who in consequence of Admiral Berkeley's orders were forcibly taken out of the 
Chesapeake, to the vessel from which they were taken, or, if that ship should no longer be 
in commission, to such staport of the United States as the American Government may- 
name for the purpose. 

" Thirdly. That I am also authorized to oflfer to the American 
Government a suitahle pecuniary provision for the sufferers in 
consequence of the attack on the Cheasapeahe, including the 
families of those seamen who unfortunately fell in the action and 

Of the wounded survivors." 3 Am. State Papers, 499, 500. 

§ Mr. Monroe to Mr. Foster, November 12, 1811, 3 Am. State Papers, 500. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 59 

The General Armstrong. 

When, in direct violation of neutral rights, the British fleet attacked 
the privateer brig General Armstrong,* in Fayal harbor, in 1814, during 
thu war of 1812, and Portugal refused the protection due to the ships of 
friendly nations in her neutral ports, Congress voted $10,000 as prize 
money to the privateersmen whose gallant conduct had proved so effi- 
cacious at a critical moment to this country : that did not interfere, 
however, with the State Department pressing a claim against Portugal 
for the owners of the vessel and for the sailors who were killed, until at 
last, even after arbitration, unfortunately decided (upon papers 
improperly submitted) against us, Congress still indemnified the 
owners of the vessel and the crew for the losses which they had sus- 
tained, and which were in their nature claims against a foreign gov- 
ernment. Although these men were not actually enlisted officers of 
the United States they were privateersmen, and as such fought under 
the Stars and Stripes and received prize money from Congress. 

The Wyoming. 

When, in 1863, an attack was made upon naval vessels of the 
United States and of other powers in the Japanese waters, and 
in the Straits of Shimonoseki, Japan was obliged not only to ren- 
der an apology but also to pay indemnities to the French, Dutch, 
British and United States Governments aggregating $3,000,000; sub- 
sequently, Japan having fully atoned for the offense, the United 
States returned its share of that indemnity, following the long-estab- 
lished precedent of this country that it would not accept a money 
indemnity for an insult to the flag; this Government, however, de- 
ducted 6 140,000 from the indemnity received to represent the expenses 
actually incurred by the Government and also as compensation and in- 
demnity for the sailors and marines of the Wyoming, who were 
attacked, and some of whom were killed on that occasion.! 

* For full account of the General Armstrong case see 2 Moore's Arbitration, pp. 1071 
et seq, and see also p. 51, ante, of this brief. The General Armstrong was not a regular 
naval vessel belonging to the United States; it was, however, a duly commissioned priva- 
teer sailing under letters of marque, and the fact that Congress voted prize money to !he 
ciew shows that the men occupied a quasi-naval position. See Act of 1834, 6 U. S. Stat, 
at L , 603; Si n. Doc. 231, 56th Cong., 2d Sess., Part. I., for numerous reports in regard 
to this case ; Act of 1882, 22 U. S. St. at L., 697 ; Act of 1895, § 1, 28 U. S. St. at L., 843. 

f Counsel for the Government have relied upon the fact that in distributing the 
Wyoming indemnity among the crew Congress ordered it to be done as- prize money. 
That is, the distribution was made on the basis of prize money. The point on which the 
claimants cite the Wyoming is that the United States received from Japan two separate 
funds — one for $750,000 to atone for the insult, which was refunded in full, the other for 
SI 40,i lOO, which was received for indemnity for expenses and for the crew. T/tis was re- 
tained, and the distribution to the crew, allhough it was made under an act of Congress for 
gallant conduct and on the basis of prize money, was. as a matter of fact, made out of 
moneys received from Japan as an indemnity for an act which was committed during a 
period of peace, but for which it was responsible. That the distribution of the Wyoming 



60 BEFORE THE SPAXISH TREATY CLAIMS COMMISSION*. 

The Water Witcb. 

In 1S55 the Government of the Unite J S - Bent out a naval vessel 
called the Water Witch, nnder the command of Lieutenant Thomas J. 
Page, to make a survey of the tributaries of the Rio de la Plata and the 
Paraguay Rivers. The Brazilian Government gave its consent to the 
expedition so far as waters controlled by it were concerned, but the ves- 
sel went up the Parana River, and proceeded a few miles above the point 
where it forms the common boundary between Paraguay and Argen- 
tina. At that time Lieutenant Jeffers, who was then in command of 
the Water Witch, perceived that the Paraguayans w c re getting guns ready 
apparently for an attack: he thereupon cleared his vessel for action also. 
A Paraguayan canoe came alongside and a man handed Lieutenant Jeffers 
a paper written in Spanish, which he declined to receive. Thereupon he 
stood up the river with his crew at quarters. Two blank cartridges were 
fired by the fort in quick succession, and these were followed by a shot 
which earned away the wheel of the vessel, cut the ropes and mortally 
wounded the helmsman. On receiving this fire Lieutenant Jeffers di- 
rected a general fire in return. The action continued for some minutes. 
It seems that the Paraguayan Government had forbidden foreign men- 
of-war to enter the waters within its jurisdiction. This fact was ad- 
mitted, but Lieutenant Page claimed that as the river was a common 
boundarv between the Argentine Confederation and Paraguay he had a 
right to go up the main chanuel of the river, although it was on the 
Paraguayan side. A great deal of correspondence ensued in regard to 
this matter, and the Paraguayan Government regarded the attempt of 
the Lieutenant in charge of the Water Witch to force his way up the 
river as an outrage, and in this respect they have been sustained by a 
writer on international law of no less authority than M. Calvo, the 
eminent Brazilian, but whose sympathies, of course, were with the South 
American countries. 

Notwithstanding the fact that the man at the wheel of the Water 
Witch was doing his duty on an occasion in which actual hostilities oc- 
curred, the United States demanded $10,000 indemnity for his family. 
and subsequently that amount was paid by the Government of Paraguay 
and turned uver to the family of the injured seaman. Counsel for the 
Government in their brief have erred in saying that this matter was 
found bv an arbitration committee to be without foundation, as the 
Hopkins claim, and not the Water Witch claim, was submitted to arbi- 
tration, and the Paraguayan Government, at the same time that it re- 



fund was placed by the Senate Committee on Foreign Relations not on the gronnds of 
gratuity but on those of justice, appears from report Ho. 120, 57th Congress, 2d Session, 
July 7, 1S3 2 (Doc. 231, p. 440) in which on page 453 it is said that justice and equity re- 
quire that Congress should recognize the claims of the crew. " Their claim is based upon 
the convention by which they were intended to be proTided for, upon the fact that 
5140,000 was set apart for them by the other contracting parties and paid to the TTnited 
States in virtual trust fur them." 



ARGUMENT OF CHAS. H BUTLER IN MAINE CASES. 61 

ferred the Hopkins claim to arbitration, voluntarily paid the indemnity 
for the sailor of the Water Witch.* 

The Huesken Case. 

In January, 1801. Mr. Huesken, the interpreter to the Japanese Lega- 
tion, was assaulted and killed; the United States at once demanded 
punishment of the offenders, an apology for the offence and an indem- 
nity for the widowed mother of Mr. Hnesken. all of which was accorded, 
and the sum of $10,000 was paid by the Japanese Government and trans- 
mitted to Mrs. Hnesken. f 

The Spanish Consuls in New Orleans aud Key West. 

In all the cases just cited the United States demanded and collected 
indemnity from foreign powers : it has also paid indemnity under similar 
circumstances. 



*A full account of the Water Witch and Hopkins cases, and the relations of the United 
States with Paraguay arising therefrom will be found in Chapter 22, 2 Moore International 
Law, pp. 1485 el seq.\ and see the report of the Secretary of the Navy, December 2, 1859. 

\ See message and diplomatic correspondence for 1862, pp. 804-807. 

In a letter of Mr. Harris to Mr. Seward, November 23, 1861, he says: ''In your 
dispatch of August 1 (No. IS) you informed me that you urgently insist, except that, in 
the extremist necessity, I shall not consent to any postponement of any covenant in the 
existing treaty without first receiving satisfaction of some marked kind for the great 
crime of the assassination of Mr. Huesken while in the diplomatic service of the United 
States. You leave me to determine on the form and mode of that satisfaction, adding 
that it would be best to secure, if possible the punishment of the assassins; but circum- 
stances unknown to you must enter into the question, and may modify my action, but 
deem the principle too important to be abandoned. After reflection, it appears to me that 
the satisfaction required might be given in either of the three following forms, viz.: 1. By 
the arrest and punishment of the assassin ; 2, by a salute to our flag; or, 3, by a money 
payment as an indemnity.'' The serious question of receiving a money indemnity as 
" selling the blood" was referred to at a subsequent point in this letter, 

On November 27th Mr. Harris wrote to Mr. Seward that the Japanese Government 
would pay an indemnity and that no effort should be wanting to punish the offenders, in 
regard to which he said : 

" I replied that Mr. Huesken was the only child of his widowed mother, who. by his 
death, had been deprived of her sole means of support. I would therefore propose that 
they should pay her a sum sufficient for her support, either in annual payments or in a sum 
sufficient to purchase a life annuity equal in amount to the income she received from her 
late son. I stated, very emphatically, that they must not consider this a propositiom from 
me to sell the blood of Mr. Hue-ken, or that the payment of any sum of money could atone 
for his murder. 

"After a few explanations had been asked and given the ministers promptly agreed to 
pay me the sum of $10,000 for the benefit of Mrs. Huesken. They then stated that they did 
not consider that the payment of this sum in any way released them from their obligation 
to bring to punishment the murderers of Mr. Huesken." 

These extracts have been quoted at length in order to show that while Mr. Huesken 
was in the diplomatic service of the United States, anJ this country was dealing with the 
other questions in connection with the opening of our intercourse with Japan, they did 
not hesitate to demand personal indemnity, although the act was committed directly 
against the sovereignty of the United States and was an exhibition of the animosity of 
the Japanese people against foreigners, and especially against the United States. 



62 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

In 1851, when the news of the summary execution in Cuba of Crit- 
tenden and other members of the Lopez expedition reached New Orleans 
and Key West, there were strong anti-Spanish riots in both cities, in the 
course of which Spanish citizens were assaulted and their property 
destroyed. Among those who suffered injury were the Spanish consuls, 
and a reclamation was made upon this Government on their behalf 
through the Spanish Minister. A long correspondence ensued in regard 
to this matter, which finally resulted in the United States indemnifying 
the consuls for the loss and indignity which they had sustained* 

A full account of this matter can be found in Wharton's Digest, and 
it is cited to show that the United States did not take the position when 
a demand was made upon it that consuls should not be indemnified 
because they occupied an official position under their Government. In 
fact, the correspondence shows that the proper authorities of the United 
States considered that there was a special obligation to indemnify the 
consuls beyond that which existed in regard to any other Spanish citi- 
zens. It is undoubtedly to these cases that Mr. Blaine referred in his 
instructions to Mr. Egan when he declared that the United States had 
recognized the principle that no self-respecting Government would per- 
mit its representatives, either civil or military, to be beaten and killed in 
a foreign country without demanding suitable reparation. f 

The Margery Case. 

In 1S75 Mr. Margery, an English officer and five Chinaman accom- 
panying him on an exploring mission from British Burmah, were killed 
by native soldiers and the British Minister at once demanded that the 
British Government should be allowed to renew the expedition and that 
an indemnity of 150,000 taels should be paid, of which 30,000 taels was 
to go to Margery's family. In this case, Mr. Avery. United States 
Minister, united with the British Minister (as did also some of the 
other foreign ministers) in demanding that the Chinese Government pay 
this indemnity for the death of a British officer.^ 

The British Sailors in -Japan. 

In 1864 British sailors on duty at the Brit sh Legation at Yedo were 
killed in a manner for which the Japanese Government was responsible, 
and on the failure of that Government to properly meet the demand which 
was made upon them, Earl Russell, then in charge of the British Foreign 
office, directed a peremptory demand to be made to the Japanese 

* For a full account of these occurrences see 2 Wharton, § 226, p. 601. 
f See extracts from Mr. Blaine's instructions of January 2, 1892, on p. 53, ante, of tins 
brief. 

X Letter of Mr. Avery to Mr. Fish from Pekin, April 1, 1875, U. S. For. Rel., 1875, pp. 
310 etseq. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 63 

Government, " which was not to be modified, delayed or even discussed," 
but to be met within twenty days.* 

The French Corvette Dupleix. 

On March 8, 1868, while the French frigate Venus and French cor- 
vette Dupleix were in the port of Sakai, Japan, a number of Japanese 

armed men attacked the -team launch of the Dupleix at a landing, 
eleven men, including the midshipman in charge of the launch, were 
killed, four were wounded and one escaped unhurt. No damage was 
done to the ship, the launch or other national property of France. The 
attack was disavowed by Japanese authorities, but the French Govern- 
ment through the French Minister at once made a demand on the Mikado, 
which included the execution of all those who had participated in the 
attack, an apology to he made on the Venus by two princes, one of the 
blood and one of the province, and " an indemnity of $150,000 to be paid 
on behalf of the Damio of Tosa to the French Government, the interest 
<>n t he fund to be applied towards the support of the families of the 
officers and the men who were murdered." These demands were acceded 
to and the indemnity was paid in three installments of $50,000 each. 

The fact that the victims of this outrage were an officer and sailors of 
the French Navy, who were actually on duty in a naval vessel when 
they were killed, and the attack resulted from the hostile feeling 
against foreigners, makes it almost identical with the Maine case, and 
peculiarly applicable thereto as a precedent for demanding indemnity 
for the families of the sailors as well as insisting upon suitable apology 
for the insult to the flag.f 

" Letter from Mr. Pruyn to Mr. Seward, from Legation of the United States in Japan, 
Yedo, April 10, 1S63: 

" Sir : I have the honor to inform you that Lieutenant-Colonel Neale, her Britannic 
Majesty's charge d'affaires, read me a communication a few days since, while I was on a 
short visit to Yokohama, which he was about sending to the Japanese Government, agree- 
ably to the instructions of Earl Russell, in which he makes a peremptory demand on this 
Government, which is not to be modified, delayed or even discussed,' but to be met 
within twenty days of the 6th inst. 

" For the murder of the British sailors in June last at the British Legation, the sum of 
£10,000 is again demanded; for the murder of Mr. Richardson and the wounding of his 
companions on the tokaido in September last, an apology is demanded from this Govern- 
ment, and also the payment of £100,000 sterling. 

"At the same time a fiigate is to be sent to the territory of the Prince of Satsuma 
(about sixty miles from Nagasaki) with a demand for the payment by him of the sum of 
£25,000. and that the chief murderers of Mr. Richardson shall be executed in the presence 
of a British officer. 

"A British fleet of twelve ships of war, under command of Rear-Admiral Kuper, is to 
enforce this demand ; the measures to be adopted are not yet determined on, but a blockade, 
or some other measures short of hostilities, is first to be resorted to." (U. S. Diplomatic 
Correspondence, 18 63, Part 11., p. 989.) 

f A full account of this affair will be found in Diplomatic Correspondence of the 
I nited States for 186S, Part 1., from pages 698-808; see index of that volume for the 
particular dispatches which refer to this incident. 



64 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 



SEVENTEENTH.-The fact that the deaths 
and injuries which are the basis of the claims 
occurred and were received on a battleship of 
the United States Navy, does not in any way 
relieve Spain from responsibility therefor, 
and the doctrine of exterritorialty applicable 
to jurisdiction of the sovereign owning- a war 
vessel over such vessel in a friendly harbor 
does not in any way relieve the sovereign of 
the port from the necessity of protecting such 
vessel or of responsibility in case of failure to 
afford such protection. 

It was with some surprise that the counsel for the claimants heard 
the counsel for the United States who opened and closed the argument 
for the Government declare that the fact that the injuries for which 
the petitioners have filed their claims, were not received within the 
jurisdiction of Spain, and therefore Spain was not liable therefor to the 
United States or to the petitioners ; but that the fact that the deaths 
and injuries occurred and were sustained on a United States battleship 
transferred the territorial location of the tort committed from Spanish 
to United States territory. Still more surprised were the counsel for the 
claimants when they heard United States couusel, in order to relieve their 
Government from the payment of a comparatively small amount of 
money, solemnly invoke before this Court those principles of exterri- 
toriality applicable to the preservation of jurisdiction of the United 
States over its own warships wherever they may be, for the purpose of 
relieving the sovereign of the foreign port which such vessels might 
visit, from liability for deaths of, and injuries to, the officers and crew 
of such vessel resulting from the wanton destruction thereof. 

There is no rule of international law which it is more important for 
the United States to preserve than that which places the burden of the 
protection of American war vessels upon the sovereign of the port 
wherever it may be, notwithstanding the rules of exterritoriality as to 
jurisdiction thereon ; this thought must have been uppermost in the 
mind of Secretary Sherman when he penned the instructions of March 
26th, 1898, which is cited under another point,* in which he claimed 
the jurisdiction over the vessel for the United States but charged the 
Spanish Government with the protection thereof while in the harbor of 
Havana. 

* See note under Nineteenth Point on p. 75, post, of this brief. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 65 

The entire amount of the claims which have been filed with this 
tribunal on account of the destruction of the Maine equals about one- 
half the average value of the battleships of the United States Navy, and 
therefore the necessity of maintaining the rule of co-existeni exterri- 
torial jurisdiction and local protection is infinitely more important for 
the United States than it is to defeai these claims. Notwithstanding 
the immense amount, as well as the principle, which is at stake, counsel 
for the Government in these cases have enunciated as a principle 
of law that when vessels of the United States are in foreign harbors 
the State in whose water they float is exempt from care or liability per- 
taining to their management and control. 

This maybe true as to what happens on the vessel, but the Attorney- 
General extends the exemption to relieving the local sovereign from 
affording any protection to the ship itself, and if his position in this 

res] t is sustained it will oblige every vessel of the United States 

Navy when it enters a foreign port to protect itself and to guard against 
disasters similar to that which happened to the Maine, and furthermore 
it will shift from the sovereign of the port to the United Slates not 
only the burden of protection, but also the burden of proving the 
cause of any disaster which might happen to the vessel. 

In order that there may be no question as to the position of the 
Attorney-General in this respect, his point is quoted, and the italics in 
the quotation are his own.'" 

The propositions of the Attorneys-General in this respect are so 
monstrous that it is practically impossible to refute them. It is the 
first time that the doctrine of exterritoriality, which has been enun- 
ciated, sustained and expanded solely for the purpose of affording pro- 
tection to the vessels of one sovereign power in the territory of another. 

*" li is submitted that no individual claim for indemnity against Spain arose out of 
the explosion of the Maim under the circumstances; and that if any claim originated 
from that occurrence it was a national claim. And this results from the peculiar situa- 
tion. As a public vessel of the United States, the Maine, although at the time of its 
destruction was physically within the territorial waters of Spain, yet she was not wilhin 

the jurisdiction of Spain. Public vessels of a Slate passing through or ihoring in 

Foreign waters enjoy an exemption from territorial jurisdiction under a well-recognized 
principle of international law. In these circumstances they enjoy absolute immunity 
from the exercise of jurisdiction by the local authorities. They are considered, as it 
were, projections of foreign territory, subject only to the jurisdiction of the flags they 
bear As iii"i </;■. ezempt from local jurisdiction, Ht> Stall in whose waters they fioat is cor- 
respondingly exempt from any can or liability pertaininq to their management <<»'/ control. 
* * * 

" From the principle of in inity of ships of war in foreign waters from local jurisdic- 
tion, certain material consequences result, some of which are convenient and advan 
tageous to the ship, its crew, and equipment; others which perhaps may. on occasions, be 

inconvenient and burdens 0. The.-e consequences, however, '1 t affect or modify the 

rule of international usage in lliis regard. As in many other situations which are 
familiar in law and custom, the maxim applies. Qui sentit commodums entire debet el onus: 
He who derives the advantage ought to sustain the burden." 



66 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

has been distorted into a general license to destroy ships and men with 
impunity; and, it' it were not for the fact that able counsel devoted at 
least two hours to maintain these propositions, it would be passed over 
with a mere mention in this brief: inasmuch, however, as the proposition 
was seriously presented to, and argued before, this tribunal it will be 
necessary to make some reference to the general doctrine of exterritor- 
iality and to the particular elements of such doctrine which were appli- 
cable to the Maine at the time she was destroyed in Havana harbor. 

Fortunately for Court, for counsel and for claimants, the position of 
the United States in this regard was definitely, clearly and concisely set 
forth within a few weeks after the occurrence, and the extract from Sec- 
retary Sherman's instructions of .March 26 to Minister Woodford, which 
is quoted under another point is the enunciation of the proper depart- 
ment of the Government of the United States upon this subject, and 
should certainly be adopted by this Court, not only because it was such 
an enunciation, but because it was a correct statement of the situation. 

On March 26th Secretary Sherman, in transmitting to him a cable 
summary of the report of the Naval Court of Inquiry, directed Minister 
Woodford to communicate to the Spanish Government that the Maine 
had entered the harbor ol Havana, relying upon the security and pro- 
tection of a friendly port, and that while she remained as to /chat took 
place on board under the jurisdiction of her men government, the con- 
trol of the harbor remained in the Spanish Government, which as the 
sovereign of Hie place loas bound to rentier protection to persons ami prop- 
erty there, unit especially to I he public ship mid the sailors of a friendly 
power* 

Secretary Sherman summed the whole case up in that paragraph. 
The United States retained jurisdiction, hut the Spanish Government 
was bound to afford protection. 

The Attorney-General's proposition practically means that the bur- 
den of protection of, as well as jurisdiction over, a battleship of the 
United States Navy in a friendly port, devolves upon the United States; 
if this is sustained it would practically relieve every foreign nation from 
affording that degree of protection to American vessels, which, under the 
rules of international law, they always have been, and now are, obliged 
to afford, and which the United States always affords, actively, and not 
passively, to the warships of other friendly nations within its ports. f 



* See extracts from Secretary Shermau's instructions to Minister Woodford on p. 
77, post, of this brief. 

f When the Spanish warship Viscaya visited New York in February, 1898, every 
possible precaution was taken to insure its safety. Police and revenue cutters guarded 
it night and day, and persons without authority were not permitted to approach within a 
certain distance of it, The correspondence in regard to the exchange of visits of the 
Spanish and American war vessels is referred to in U, S, For, Rel., 1898, under Spain; 
see sub-head Battleship Maine, 



ARGUMENT OF CHAS. H. SUTLER IN MAINE CASES. ri? 

The doctrine of exterritoriality applies equally to ships of war and 
to the residences of foreign ambassadors and foreign ministers* 

In neither case does the local jurisdiction extend over the ship, 
the embassy or the legation, but the local sovereign is bound to protect 
the ship and the residence, and also the people thereon and therein. 

Vattel declares that the " independency of the ambassador would 
be very imperfect, and his security very precarious, if the house in which 
he lives were not to enjoy perfect immunity and to be inaccessible to the 
ordinary officers of justice." But as to protection he says : " The house 
of an ambassador ought to lie safe from all outrage, being under the 
particular protection of the law of nations and that of the country; to 
insult it is a crime both against the State and against all other nations "f 
The statement of the law in Secretary Sherman's letter to Minister 
Woodford, which lias already been cited, is almost a paraphrase of 
Vattel's position as to immunity from local jurisdiction and the co-ex- 
isting right to rely upon the protection of the local sovereign. 

Lieutenant-Colonel and Deputy Judge Advocate George B. Davis, 
formerly Professor of Law at the Military Academy at West Point, is one 
of the ablest authorities on international law in the United States. The 
second edition of his " Elements of International Law." originally pub- 
lished in 1887, appeared in L900, and in his chapter devoted to the prin- 
ciples of exterritoriality he practically argues this case for the claimants 
and distinctly sustains their position as to the degree of protection to be 
accorded by the sovereign of a port to the war vessels of a friendly power 
which may be therein on a mission of peace. 

In support of the principle that while the sovereignty of the owner 
of the vessel continues thereover, the sovereign owner of the port 
must render protection, ho cites the case of The Exchange,], and there- 
after proceeds to give instances in which the questions of exterritoriality 
have been involved. He refers to the case of the Sitka, a Russian ves- 

* Wheaton, in enumerating the instances in which tin- municipal institutions of a 
State may operate beyond the limits of its territorial jurisdiction, specifies : 

"(1) person of the sovereign ; (2) the person of the ambassador and hi- residence; 
13) the foreign army or fleet marching through, sailing over or stationed in the territory 

of another State, and in the abse of any express prohibition the ports of a friendly 

State are considered as open t<> the public, armed ami coi issioned Bhipa belonging to 

another nation with whom that State is at peace. Such ships are exempt from the juris- 
diction ol the local tribunals and authorities, whether they enter the ports under the 
license implied from the absence of any prohibition or under an express permission 
stipulated by treaty " (Dana's 8th Edition, 1866, Part '2. Sec. 95, page 153). 

In elaborating upon this, he says: " If there shall tie no prohibition, the ports of a 
friendly nation are considered as open to the public ships of all powers with whom it is at 
peace, and they are -opposed to enter such ports ami remain in them, while allowed to 
remain, under the protection of the Government of the place" {hi, i, 100, p. 159). 

| Vattel, Bk. 4, Ch. 9, g 117. 

X Schooner Exchange vs. McFadden, IT. S. Sup. Ct., 18; 7 Cranch, 108, Marshall, 
Ut. J. 



68 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

sel, which brought a prize into the port of California, and the captain of 
which refused to recognize process issued by the United States, and was 
sustained therein by the Attorney-General; he also cites under the same 
head the cases of the Baltimore, the Constitution* and the Maine. 

Professor Davis published his last edition before any claims had 
been filed on behalf of sufferers of the Maine. He has occupied a 
position of great importance under the United States, that of instruct- 
ing the men who were to be the officers in its army, and who necessarily 
should possess a complete knowledge of the practical relations of the 
United States with foreign countries; it cannot be presumed that he 
would improperly impute to a foreign nation lack of care and protection, 
or charge it with any greater degree of care and protection than the 
principles of international law actually require, lfis opinion, there- 
fore, in regard to the responsibility of the Spanish Government for the 
destruction of the Maine is entitled to be received with great weight 
by this Commission, and as he covers in his brief review of the case 
both the question of degree of authority retained thereover by the United 
States and the degree of protection to be accorded thereto by Spain, his 
summary will be quoted in full in the notes as it sustains in every respect 
the claimants' position that, as he expresses it: 

" The privilege of exterritoriality is admitted to extend only 
to the officers and crews ot public armed vessels, and goes no 
further than to exempt the vessel and crew from the operations 
ot the local laws. It confers uo- authority upon the officers of 
the visiting vessel to resort to measures of defence, or of 
precautionary police, outside the ship, or within the territorial 
waters of the State in whose harbor it is anchored ; for such 
protection from purely external injury the ship must rely upon 
the efforts ot the local authorities, whose duty and responsi- 
bility it is to resort to such measures ot precaution as are 
suggested by the emergency of the occasion," and that — 

"If, in view ot the local situation, or in consequence of its 
strained relations with the Government of the United States, 
the Spanish Government was either unable or unwilling to 
charge itself with the safety and security of the Maine, it 
Should have withheld its consent to the entry of the vessel 
into its territorial waters; failing to do this, that government 
was justly held responsible for the disaster which ensued upon 
its failure to exercise the diligence which was demanded by 
the circumstances ot the case."f 



* In this case the Admiralty Courts of Great Britain refused to take jurisdiction of a 
salvage case against a vessel belonging to the U. S. Navy. 

| " Case of the " Maine." The United States battleship Maine entered the harbor of 
Havana, Cuba, on January 25, 1898. Immediately upon her arrival, the customary 
civilities were exchanged and the vessel was conducted, by a government pilot, to the 
anchorage assigned her, as a foreign vessel of war, by the local naval authorities. Here 
the ship remained at anchor for a period of about three weeks. During that time it does 
not appear that any special measures of precaution were resorted to by the Spanish 
Government with a view to insure the safety of the visiting vessel. At 9.40 P. M., on 



ARGUMENT OF CHAS. H. BUTLER IX MAINE CAPES. 69 

EIGHTEENTH.— Article VII. of the Treaty of 
1898 relinquished claims of every kind, and 
this included claims whether the same had 
been presented by the Government of the 
United States to that of Spain or not. 

Counsel for the Governmenl have endeavored to limit the use of the 
word "claims" as used in Article VII. of the treaty of 1898 to the de- 
February 15lh, being at the li moored to the buoy assigned her upon her arrival, the 

Maine was destroyed by the explosion of a submarine mine which eaused the incidental 
explosion of one or more of her forward magazines. A naval court of inquiry \va- imme- 
diately convened by order of the United States Government, which, after a careful and 
exhaustive investigation of the circumstances, reached the opinion that the destruction of 
the vessel was caused by the explosion of a mine exterior to the ship, and was not due to 
the fault or negligence of her officers and crew. An inquiry instituted by the Spanish 
Government, after a less complete investigation, is believed I" have reached a different 
conclusion; but the position of certain parts of the ship's structure, in consequence of the 
explosion, including portions of the keel, the outer shell, and the outside bottom plating, 
were such as to offer conclusive proof that the destruction was due to an exterior explo- 
sion. By whom and under what circumstances the destruction was caused has never 
been determined. It. is proper to say, however, that the act was promptly disclaimed by 
the local colonial authorities, and it has never been authoritatively suggested that the 
injury was ordered, or authorized, Of even countenanced, by any branch or portion of the 
governmental authority of Spain. 

" Although the relations existing between the governments of the United Slates and 
Spain were strained at the time of the occurrence, the circumstances attending the entry 
of the vessel were by no means unusual, and the visit was not made until a conference 
had been had with the Spanish minister in Washington, in which the renewal of the visits 
of public armed vessels of the United Stales to Spanish waters had been discussed and 

accepted, and the governmental authorities at Madrid and Havana ha. I I n advised of 

the purpose of the United states Governmenl to resume friendly naval visits at Cuban 
ports, and that in that view the Maine would forthwith call at the port of Havana. 

" The case is novel at international law in that it gwes rise to a question as to 
the nature and extent of the responsibility incurred by a state which, under the cir- 
cumstances above set forth, permits a foreign vessel ol war to enter its ter- 
ritorial waters. The rule of international law applying to the case is believed 
to be correctly stated by Chief Justice Mar-hall in the case of the Exchange in 
the following terms: ' Unless closed by local law, the ports of a friendly nation are con 
sidered as open to the public ships of all powers with whom it is at peace, and they are 
supposed to enter such ports, and to remain in them, while allowed to remain, under the 
protection of the government of the place.' [Then follows the first quotation in the text.] 

'• Where independent nation? are concerned, the degree of care to be shown by one 
State in order to prevent injury to another, where such duty of prevention exists, is per- 
haps best described by the term ' due diligence ' : this means something more than, and 
different from, 'reasonable care,' as that term is used in describing the corresponding 
obligation owed by one individual to another, or to the public, and implies that the 
diligence used in the prevention of injury must be proportioned to the risk of such 
injury occurring to the vessel of a friendly nation which may happen to enter its 
ports or territorial waters. The duty of protection, and the expediency of resorting to 
special precautionary measures, upon the occasion of a public armed vessel entering even 



10 BEFORE THE SPANISH TKEATY CLAIMS COMMISSION. 

mands of citizens of tlie United States against Spain which had been 
presented by the United States to Spain prior to the execution of the 
treaty. This is utterly untenable, because the relinquishment clause was 
made as wide as possible. It included " all claims for indemnity, 
national and individual, of every kind,"'* and that necessarily includes 
all claims and demands whether presented or not. In fact, the fallacy 
of the Government's position is clearly demonstrated by the (act that the 
relinquishment included claims that "may have arisen since the begin- 
ning of the late insurrection in Cuba and prior to the exchange of 
ratifications of the present treaty." It was manifestly impossible to 
have meant presented claims when the words " may have arisen" were 
used as to claims prior to the signature of the treaty, and the relinquish- 
ment included claims which might possibly have arisen in the future 
period of indefinite length which necessarily ensued before the treaty 
could be ratified by the Senate and the ratifications formally exchanged, 
an event which did not actually occur until four months thereafter. 

Counsel making the closing argument for the Government denied 
that rights of citizens for indemnity were claims within the meaning of 
the relinquishment clause of the treaty until taken up by the United 
States Government and presented against Spain directly or by a sample 
case, or by implication.! 

The definition of the word "claims" is too well known to require 
any elaborate argument on the part of the claimants to refute the Gov- 
ernment's proposition. The relinquishment was of claims of every kind, 
the assumption or agreement to adjudicate and settle related to every 
claim relinquished, the jurisdiction of this Court extends over all claims 
assumed. That is, the relinquishment clause as against Spain, the as- 
sumption clause as against the United States, and the clause conferring 
jurisdiction on this Court are all co-extensive, each with the other, and 
no hair-splitting distinctions can deprive a citizen having a just claim 

a friendly harbor, are suggested by the fact that the crew are not only strangers to the 
port, but are members of a different nationality, and thus occupy a very different relation 
from that of ordinary aliens; in the case of the Maine, a resort to such preventive 
measures was not only sanctioned by the rules of international law, but required by 
express treaty stipulations, and strongly suggested by the strained relations existing 
between the United Slates and Spain." [The article concludes with the second quotation in 
the text.] (The Elements of International Law. Bj George B. Davis, New and Revised 
Edition, 1900, pp. 77-SO.) 

*For Article VII. in full, see note on p. 2, ante, of this brief. 

\ The following colloquy occurred during the closing argument as appears from the 
printed argument of Mr. Russell (pp. 35, 36): 

Mr. Chandler. Well, this section [Art. VII. ol the Treaty] includes individual claims 
of every kind. 

Mr. Russell. There may be a right and no claim, a claim and no right. 

Mr. Chandler. Tell us what the rights are that are not claims. 

Mr. Russell. The rights that are not claims are the rights that have not been turned 
into claims and made by the Government in some way, by implication or otherwise. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 71 

against Spain, no matter in what condition it was on December 10th, 
1898, from having the .same adjudicated by this Court and the United 
States Government charged therewith. 

The claimants do not consider that there is any basis whatever to the 
Government's contention that it can avoid payment of just claims of its 
citizens because it failed to properly preseul them or include them 
specifically in the relinquishment; they do claim that the Maine claims 
had been presented not only by implication which, .Mi-. Russell admits 
would be sufficient, but directly, to the Spanish Government, and repara- 
tion had been demanded therefor, and this will lie demonstrated by ex- 
tracts from the correspondence between the e ecutive department of the 
Government and the Spanish Government, which are quoted in the next 
point* In this point, however, it will be shown that even if the Maine 
claims had never been formally, or even by implication, accepted 
by the United States and presented to Spam, they would still be, as 
they undoubtedly are, included in the relinquishment, assumption ami 
jurisdictional clauses of the treaty, ami the act creating I his com- 
mission. 

This Court will remember that the secretary and counsel of the 
American Commissioners in Paris was Mr. John B.issett Moore, whose 
knowledge of the form of and terms used in claims conventions prob- 
ably exceeds that of any other person. Not only every claims conven- 
tion made by the United States, but many made by foreign powers be- 
tween each other for the purpose of releasing claims have been carefully 
studied and commented upon by him in his great work on international 
arbitration. The general presumption, therefore, that plenipotentiaries 
mean what they say and say what they mean in mutually releasing 
their respective Governments from claims national and individual of 
every kind is strengthened by the tact that in this particular instance 
the protocols show that the exact wording of the articles was left to the 
Secretaries-General. f one of whom was Mr. Moore, who could not 
possibly have used words which were not intended to exactly express the 
extent of the mutual releases 

Notwithstanding the elaborate argument made by tin- counsel 
closing the case for the Government, it lias been well established 
that claims which had not been formally presented by the asking 
Government on behalf of its citizens to the Government upon 
whom the demand is made, are not excluded from the releases 
contained in claims conventions, or from tbe jurisdiction oi a 
tribunal to which claims are referred for arbitration. 

The case of Aspinicall vs. Venezuela has already been referred t<> al 
some length, in which it was decided that claims ir contractu could lie 
considered by an arbitration tribunal created by the Convention between 

* See page 75 el seg., post, of this brief. 

\ See Doc. X". 6i. Treaty with Spain, Protocol No. in, p, 280 



72 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

the United States and Venezuela of 1889, although it was contended 
that the correspondence related solely to claims arising ex delicfu.* 

The commissioner who wrote the opinion in that case collected nu- 
merous definitions of the word " claims," which include not only de- 
mands, but the right to claim or demand; the matter is summed up by 
the expression: "Claim is the generic term implied in the legislation of 
the United States to express every form and character of demand that 
one can urge against another," and the opinion adds that it would seem 
quite superfluous to cite particular statutes or authorities on this sub- 
ject.! 

Had it been intended, however, by the plenipotentiaries in Paris to 
exclude either from the relinquishment or the assumption clauses of 
Article VII. claims which up to that time had been presented, the same 
form would have been used to express their intention as has customarily 
been used in claims conventions which have been confined to a specific 
class of claims.^ and the fact that Mr. Moore had all of these treaties be- 
fore him at the time is sufficient evidence that the intention of the 

* See pp. 13 ei seq., ante, this brief. 

f Moore's International Arbitration, pp. 1C22 el sei/. 

I The convention for the settlement of claims with Peru of 1 863 (6 Moore's Interna- 
tional Arbitration, 4786) provides that all claims not yet settled between the two Govern- 
ments, " and statement of which, soliciting the interposition of either Government, may, 
previously to the exchange of the ratification of this convention, have been filed in the 
Department of State at Washington or the Department of Foreign Affairs at Lima, shall 
be referred to a mixed commission," etc. 

The convention for the settlement of claims with Peru of 1869(5 Moore's Interna- 
tional Arbitration, 1 787) provides that all claims, &c. " which may have been presented 
to either Government tor its interposition since the sittings of the said mixed commission, 
and which remain yet unsettled, as well as any other claims which may be presented 
within the time specified in Article III. hereinafter, shall be referred," Ac. 

The convention for the settlement of claims with American citizens made with Por- 
tugal in 1S51 (5 Moore's International Arbitration, 4791) provides that " the indemnities 
which Pot tugal promises to pay, or cause to be paid, for all the claims presented pre- 
vious to the 6th day of July, 1850, on behalf of American citizens, by the Government of 
the United States (with the exception of that of the General Armstrong) are fixed at 
$91,727," Ac. 

The convention for the settlement of claims with Venezuela of 1867 (5 Moore's Inter- 
national Arbitration, 4808) provides that "all claims on the part of corporations, com- 
panies or individuals, citizens of the United Slates, upon the Government of Venezuela, and 
which may have been presented to their Government, or to its legation at Caracas, shall 
be submitted," etc. 

The claims convention with Venezuela of 18S9(5 Moore's International Arbitration, 
p. 4810) provides that "all claims, &c, which may have been presented to their Govern- 
ment, or to its legation at Caracas, before the first day of August, 1868, and which by the 
terms of the aforesaid convention of April 25th, 1866, were proper to be presented to the 
mixed commission organized under said convention shall be submitted," &c. 

The convention with Mexico for the adjustment of claims of 1839 (5 Moore's Interna- 
tional Arbitration, p. 4771) provided that "all claims of citizens of the United States 
upon the Mexican Government, statements of which, soliciting the interposition ot the 
Government of the United States, have been presented to the Department of State or to 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 'W 

American Commissioners was to cover every possible right or claim of 
every kind which either had been, or could be, urged by one government 
against the other. The correspondence between the State Department 
and the Spanish Government, through Minister Woodford, and the sub- 
sequent correspondence prior to the declaration of war: the letter of 
Secretary Day to the Duke D'Almodovar del Rio, of July 30th, 1898; and 
the correspondence between Mr. Day, as President of the American Com- 
missioners in Paris, and M. liios. one "I' the Spanish Commission, are all 
set forth at length under the next point,- and will not be referred to at 
length here, except t" say that the correspondence before the war 
contained a direct charge that Spain had failed to afford proper 
protection to our ships and sailors while under her protection 
in Havana Harbor, and that the United States expected Spain to 
make the reparation then for that the government of one civilized 
nation should make to another under such circumstances, ami that the 
letters of Secretary Day referred to claims of our citizens lor injuries 
to person and property, and that therefore the demand was complete 
and the claims could be considered as presented: that correspondence is 
referred to under this point simply to show that it was the intention of 
the Commissioners, both American and Spanish, to so mutually release 
each Government from claims of the other, both national and on account 
of its citizens, that no claim could ever be made after the ratification of 
this treaty by one Government upon the other for any cause whatso- 
ever which was based upon a matter happening prior to the ex- 
change of the ratifications. If the ingenious argumenl of the counsel 
for the Government is correct, and the relinquishment clause does not 
cover what he calls abstract rights or unpresented claims, then the 
United States is in the position of not having been released by Spain 
from claims which had not been presented to the United Mates, and Spain 
is not released from Mich " abstract rights " of United States citizens as 
their Government may now see fit totakeupand present to Spain de novo 
and demand additional indemnity to that already received, and which 
Spain was certainly justified in believing was in full for all possible 



the diplomatic agent of the United States at Mexico until tlu signaturi of this convention 
shall be referred. " <Src, 

The convention with Mexico for the settlement of claims of 1868 (5 Moore's Inter- 
national Arbitration, 4773) limits the claims to those arising from injuries to persons or 
property * * * which may have been presented to either Government for its inter- 
position with the other since the signature of the treaty of Guadalupe Hidalgo between 
the United States and the Mexican Republic "f the 2d of February, 1848, and which 
will remain unsettled, as well as any other such claims which may be presented within 
the time hereafter specified, shall be referred." (fee. 

These instances might be indefinitely multiplied, but enough have I a given to 

show that where any limitation i- made as to the prior presentation of claims, it is 
expressly specified in the treaty aid the jurisdiction of the tribunal over claim- is limited 
only by the terms of the treaty, 

* See pp. 75 et seq. of this brief. 



*4 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

and contingent liabilities as well for those which had been actually pre- 
sented prior to the declaration of war. 

The provisions of the Act of March 2, lOOl, creating this Com- 
mission, indicate that Congress understood that claims had been 
assumed by the treaty and would be adjudicated by this Court 
which had not been presented by tbe Government of the United 
States to Spain. As has already been stated, the relinquishment and 
assumption clauses of the treaty and the jurisdictional clause of the Act 
are co-extensive each with the other. Had Congress considered that 
only such claims as had actually been presented through the State De- 
partment to the Spanish Government had been assumed, it would un- 
doubtedly have limited the jurisdiction of the Court to such claims. 
Instead, however, of simply providing that the claims in the Department 
of State should be transmitted by the Secretary to this Commission, it 
expressly provided that claims could be filed de novo by the claimants for 
a period of six months after the first session of the Commission and 
created no limitation in regard thereto based upon prior presentation.* 

All the provisions of the Act relating to the condition of the claim, 
the filing thereof and the limitations as to the presentation, are contained 
in the extracts from the Act which are quoted in the note, and surely it 
is not possible to deduce from those few clear-cut sentences any support 
whatever for the Attorney-General's proposition that the jurisdiction of 
this Court, the assumption of the claims by the United States or relin- 
quishment thereof as against Spain was in any way limited by the prior 
presentation thereof. 

*Sec. 9 of Chap. 800, 31 U. S. St. L., p. 977, which is the act appointing this Com- 
mission, provides: "that every claim prosecuted before said Commission shall be pre- 
sented by petition setting forth concisely and without unnecessary repetition the facts 
upon which said claim is based, together with an itemized schedule setting forth all dam 
ages claimed. Said petition shall also slate ihe full name, the residence and the citizen- 
ship of the claimant, and the amount of damages sought to be recovered, and shall pray 
judgment upon the facts and law. It shall be signed by the claimant, or his attorney or 
leo-al representative, and be verified by the affidavit of the claimant, his agent, attorney or 
legal representative. It shall be filed with the Clerk of the Commission, and the prosecu- 
tion of the claim shall be deemed to have commenced at the date of such filing. All 
claims shall be filed as aforesaid within six months from the date of the first meeting of 
the Commission, and every claim not filed within such time shall be forever barred: 
Provided, that the Commission may receive claims presented within six months after the 
termination of said period if the claimants shall establish to their satisfaction good reasons 
for not presenting the same earlier." 

Section 8 of the Act provides " that all reports, records, proceedings and other docu- 
ments now on file or of record in the Department of State, or in any other department, or 
certified copies thereof, relating to any claims prosecuted before the said Commission 
under this Act, shall be furnished to the Commission upon its order made of its own mo- 
tion, or at the request of the claim »nt, or of the attorney representing the United States 
before said Commission. The first section of the Act provides that " this Court shall have 
jurisdiction to receive, examine and adjudicate all claims of citizens of the United States 
against Spain which the United States agreed to adjudicate and settle by the seventh 
article of the treaty concluded between the United States and Spain on the 10th day of 
December, 1898. It shall adjudicate said claims according to the merits of the several 
cases, the principles of equity and of international law." 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 75 

NINETEENTH.— The protocols and records 
of the American and Spanish Commissioners 
negotiating- the Treaty of Peace and the cor 
respondence between the State Department 
and the Spanish Government clearly indicate 
that the claims of the petitioners were in- 
cluded in the assumption clause of Article VII, 
and in the adjudication clause of the same 
article, and that a formal demand for the pay- 
ment of these claims had been made on Spain 
prior to the declaration of war, 

As stated in the preceding point, counsel for the Government have 
contended that the Maine claims were expressly excluded from the assump- 
tion clause of Article VII. of the Treaty and also from the adjudication 
clause at the cud of the same article: they have attempted to sustain this 
position by referring to the protocols of the Commission and the letter 
of Secretarj Day of July 30, L898, to the Due d'Almodovar del Rio; and 
they also claim that the expressions used in the protocols (which will be 
hereafter quoted at length) should be construed by this Court as a direct 
promise to the Spanish Government thai there would be no subsequent 
adjudication between the United States and its own citizens of claims 
involving the destruction of the Maine and its causes. In fact, the 
closing of the final argument of the Government counsel was an 
earnest plea on behalf of the Spanish Government that this Court, 
constituted by the United States Government under the adjudication 
clause of Article VII. would not violate the good faith of the American 
nation by attempting to ascertain the rights of American citizens for fear 
that it might offend and disgrace the Spanish Government. 

So tar from protocols id' the Peace Commission and the correspond- 
ence between the Department of State and the Spanish Government, 
sustaining the position of the Attorney-General, the only reasonable con- 
struction that can be placed upon them thereon, is that the United States 
assumed all claims of its citizens against Spain, and stated to the Spanish 
Commissioners that the matter as between the United States and 
Spain was closed, and that as between itself and its own 
citizens the United States would adjudicate all claims, to 
the exclusion of Spain, and in the manner in which it is now 
adjudicating them, to wit, by the creation of this Commission; this 
construction necessarily clothes this Court with jurisdiction to hear and 
determine these claims; and if it has jurisdiction to consider the claims 
at all it must have lull power to adjudicate l hem upon the merits, as it 
cannot be conceived that a Court directed to adjudicate claims upon 
their " merits and the principles of equity and of international law," 
could possibly take jurisdiction of any cases and be limited as to the 



76 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

extent of its investigation by any fear of wounding the sensibilities of 
a friendly nation. 

When the claimants" counsel called attention in his opening argu- 
ment to that portion of the Government's brief which referred to the 
inadvisability of this Court investigating this question for fear of offend- 
ing "the sensibilities of a friendly nation," the President of the Court 
informed him that it would be unnecessary to continue the argument 
upon that point, and relying upon that suggestion counsel passed at once 
from that branch of the subject and he does not intend to discuss it any 
further in this brief, but he will confine the argument to the effect of the 
correspondence and protocols referred to by the Attorney-General. 

In order to fully appreciate the effect of the '-protocols'' of the 
Peace Commission which have been referred to by the Attorney-General, 
and which will be quoted in full under this point, it is necessary to trace 
the history of the Main/' claims from their inception, so far as the rela- 
tions of the United States and Spain in regard thereto are concerned. 

The explosion occurred on February 15, 1898. During the next few 
days several messages of sympathy were received from the Spanish Gov- 
ernment at Madrid, and also from officers of the Spanish Government in 
Cuba, all of which were properly acknowledged by the Department of 
State; in none of the messages was there any admission of responsibility 
for the act. nor in the acknowledgments thereof by the United States 
was there any expression which might be construed as relieving Spain of 
any responsibility for the act. 

On March 20th, while the Naval Court of Inquiry was holding its 
sessions, the President, relying upon the fact that the burden of proof 
rested upon Spain to disprove her responsibility for the destruction of 
the Maine, as he was clearly entitled to do* communicated to Mr. Wood- 
ford, through Secretary Sherman, that the Naval Board would make a 
unanimous report that the Maine was blown up by a sub-marine mine, 
and that the matter could be peacefully settled if full reparation were 
promptly made. \ 

Letters, despatches and instructions passed in quick succession^ be- 
tween Washington and Madrid, all of which contained imperative 

* See authorities collated on this subject under Seventeenth Point, ante. 

\"Maine loss may be peacefully settled if full reparation is promptly made, such as 
the most civilized nation would offer. But there remain general conditions in Cuba 
which cannot be longer endured, aud which will demand action on our part, unless Spain 
restores honorable peace which will stop starvation of people and give them opportunity 
to take care of themselves, and restore commerce now wholly lost. April 15th is none 
too early date for accomplishment of these purposes. Relations will be much influenced 
by attitude of Spanish Government in Maine matter, but general conditions must not be 
lost sight of. It is proper that you should know that, unless events otherwise indicate, 
the President, having exhausted diplomatic agencies to secure peace in Cuba, will lay the 
whole question before Congress " (U. S. For. Rel., 1898, pp. 692, 693). 

| On March 22. 1898, Mr. Woodford notified the President that he had seen Minister 
Moret that morning and had a conversation with him in which he had stated to him that 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 77 

demands for separation, until at last on March 26th Secretary Sherman 
telegraphed to Minister Woodford a long summary of the report of the 
Maine, in the last sentences of which he distinctly stated the position 

of the United States Government as follows: 

" Upon the facts as thus disclosed a grave responsibility 
appears to rest upon the Spanish Government. The Maine, on a 
peaceful errand, and with the knowledge and consent of that 
Government, entered the harbor of Habana, relying upon the 
security and protection oi a friendly port. Confessedly she still 
remained, as to what took place on board, under the jurisdiction 
of her own Government; yet the control of the harbor remained 
in the Spanish Government, which, as the sovereign of the place, 
was bound to render protection to persons and property there, 
and especially to the public sbip and the sailors of a friendly 
power."* 

" beyond an J above the destruction of the Main.', unless some satisfactory agreement is 
reached within a very few days, which will assure immediate and honorable peace in 
Cuba, the President must at once submit the whole question of the relations between the 
United States and Spain, including the matter of the Maine, to the decision of < longress." 
[U. S For. Rel„ 1S9S, p. 696.) 

On March '25 Mr. Woodford wrote to Mr. Sherman an account of his interview of 
March '23d in which he repeated the statement which has just been quoted and stated that 
Minister Gullon had replied that 

" tile Spanish Government had not received the text of the Spanish report upon the ex 
plosion of the Main,, and in the absence of any statement by myself [Mr. Woodford] as 
to the character of the American report he could not discuss the matter, but that the 
Spanish Government would certainly do whatever right and justice should require when 
his Government should have full knowledge of all the facts" (U. S. For. Rel., 1898, p. 
698.) 

After referring to other subjects, Mr. Woodford said that lie rinsed the interview 
" by expressing my belief that the present Spanish Government would deal justly and 
honorably in regard to the destruction of the U. S. S. Maine, in the harbor of Havana, 
whenever I should be instructed to present that milter for diplomatic action, but that 
now, beyond and above the destruction of the Maine, and even beyond and above all 
questions of the destruction of American property interests in Cuba, the great and con- 
Irolling questions of humanity and civilization require that permanent and immediate 
peace be established and enforced in the Island of Cuba. 

" Minister Gullon replied to me, through Minister Moret as interpreter, that Spain 
might be relied upon to do what is right and just and honorable in the matter of the 
Maine" (U. S. For. Rel., 1 898. pp. 699-700.)' 

At a subsequent point in the letter, Mr. Woodford said: 

" The Spanish Minister was very earnest in his desire that the report of the investi- 
gating commission on the subject of the Maine should not be sent to Congress, but should 
be held as a subject of diplomatic adjustment between the two Governments. He assured 
nu' that Spain would do in this matter whatever should be just and right." (I*. S. For. 
Rel., 1898, p 701.) 

On March 25, Mr Woodford sent the President a long telegram, the first sentence of 
which was as follows : 

"Official interview this afternoon (Friday) with Minister of Foreign Affairs. He 
assures me positively that Spain will do all the highest honor and justice require in the 
matter of the Maw," (I'. S. For. Rel., 1S98, p 703.) 

* That part of Secretary Sherman's telegram relating to Spain's responsibility is : 
" In conclusion, Court finds that loss of Maine was not due to any fault or negligence 
of any of the officers or crew, but to explosion of a submarine mine, which caused partial 
explosion of two or more of the forward magazines. No evidence, however, obtained fix- 
ing responsibility on any person or persons. * * * (Extract above then follows.) 

"The Government of the United States has not failed to receive with due apprecia- 



78 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

The Spanish Government practically accepted these demands and 
the United States was informed through the proper diplomatic channels 
that the matter would be adjusted in some way honorable and favorable 
to both nations, and that Spain would arbitrate the matter.* 

Meanwhile correspondence took place between Senor Polo de Ber- 
nabe, the Spanish Minister at Washington, and Mr. Day, enclosing copies 
of reports both of the Spanish Investigating Committee and the United 
States Naval Board of Inquiry, f Matters were still in this position 
when, on April 11th, President McKinley transmitted his message to 
Congress in resrard to the condition of affairs in Cuba, in which he re- 
ferred to the Maine in the language which has already been quoted at 
some length, pages 20 el seq., ante, as well as to the propositions which 
had been made in regard to arbitration by Spain, and also declared that 
the destruction of the vessel was a patent and impressive proof of a state 

tion the expressions of sympathy by the Government of the Queen Regent with the 
United States in the loss of its ship and sailors. This fact can only increase its regret that 
the circumstances of the case, as disclosed by the report of the board of inquiry, are such as 
to require of the Spanish Government such action as is due where the sovereign rights of 
one friendly nation have been assailed within the jurisdiction of another. The President 
does not permit himself to doubt that the sense of justice of the Spanish nation will dictate 
a course of action suggested by the friend!} 7 relations of the two Governments. You will 
communicate the contents of this instruction to the Minister of State and give him para- 
phrase if desired " (U. S. For. Rel., 1898, pp. 1041, 1042). 

* On March 28th Minister Woodford, at an interview with the Spanish Minister of 
Foreign Affairs, communicated Secretary Sherman's views to him leaving a statement 
couched in exactly the same words as contained in the dispatch, and on March 28th so 
informed the Secretary of State (U. S. For. Rel.. 181)8, pp. 1040-1044). On March 29th 
he addressed a letter to the President in which he stated that he had read the summary 
just referred to and left an official note giving such summary with the Minister of Foreign 
Affairs, and that on the following day he had had an interview with President Sagasta 
and Senor Moret and Senor Gullon, and that after stating the position of this Government 
he had awited President Sagasta's reply who had 

" mentioned the loss of the Maine, and expressed his appreciation of the manner in which 
you [the President] had presented the subject to Congress, and added that he believed 
your method of dealing with this question would enable the two Governments to examine 
and adjust the matter in some way honorable and fair to both nations " (IT. S. For Rel., 
1898, p. 719). 

Another account of this interview, in which the same is repeated, was transmitted 
by Mr. Woodford to Mr. Day (U. S. For. Rel., 1898, p. 723). 

Meanwhile, on March 28th, President McKinley transmitted to Consress the official 
report of the Maine Board of Inquiry. He closed his message by referring to the fact 
that he had communicated the contents of the report and the views of this Government in 
regard thereto to the Queen Regent. 

On April 1st Mr. Woodford wrote to the President stating that the propositions 
made by the Spanish Government in regard to affairs in Cuba went as far as they could 
possibly go, but he said they had already yielded one or two points, including one as 
follows: 

" First, they are willing to arbitrate the Maine matter. Some days ago they talked 
fight if we should even suggest that they were responsible for the loss of the Maine" (U. 
S?For. Rel., 1898, p. 728). 

f U. S. For. Rel., 1898, pp. 1045 et seq. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. tS 

of things in Cuba that was intolerable and such that the Spanish Gov- 
ernment "cannot assure safety and security to a vessel of the American 
navy in the harbor of Havana on an errand of peace, and rightfully 
there."* The message was referred to the Committee on Foreign Rela- 
tions of the United States Senate, which had already other matters 
relating to the explosion of the Maine before it, in regard to which it had 
taken considerable testimony. In fact, the Senate through this com- 
mittee, conducted an independent investigation into the causes of the 
destruction of the Maine, ami the resolutions which were reported by it 
on April 13th and subsequently adopted on April 20thf were not based 
exclusively on the report of the Naval Court as transmitted by the 
President, but also upon competent testimony taken by the committee, 
and its findings^ are entitled to the greatest weight and consideration. 

The report of the Committee was published, printed and widely dis- 
tributed, ami while there is no evidence that the entire report was for- 
mally transmitted to the Spanish Government, there was no injunction 
of secrecy placed thereon, and it is now a matter of history that the re- 
port was published far and wide in the public press, both American and 
foreign, ami was accessible to every person who desired to obtain a copy 
thereof, and the presumption must be, therefore, that the Spanish Govern- 
ment was fully aware of the report and everything that was contained 
therein. All other documents referred to under this point were directly 
transmitted to the Spanish Government or proceeded therefrom. 

On April 20th the resolutions recommended in the report were adopted 
and were transmitted to the Spanish Government, which regarded the 
passage thereof as an act of hostility, and not only refused to comply 
therewith,, but severed diplomatic relations in a manner which Mr. 
McKinley declared in a message transmitted on April '.'•">. 1898, to Con- 
gress " accompanies an existing state of war between sovereign powers." 

This was immediately followed by the Act id' April 35, 1898, declaring 
war to have existed against the Kingdom of Spain since April ".'I. L898.§ 

The foregoing recital of facts contains, as counsel believes, all the 
published correspondence and public enactments, and of which this 
Court will take judicial knowledge, relating to the destruction of the 
battleship Maine so far as diplomatic relations between this country and 
Spain are concerned prior to the declaration of war. It shows that at 

* U. S. For. Rel., 1898, p. 768. 

f These resolutions appear in full on p. 29, <<«/<, of this brief. 

\ " It is the opinion of your committee, having considered the testimony submitted 
to the board ol inquiry, in connection with further testimony taken by the committee, and 
with tlie relevant and established facts presented by the events of the last three years, 
that the destruction of the Maine was compassed either by tlie official act of the 
Spanish authorities or was made possible by a negligence on their part so willing and gross 
as to be equivalent in culpability to positive criminal action" (Sin, Rep. No. 885, oath 
Congress, 2d Session, p. v.). 

j 30 U. S. Stat, at L., p. 36, and see ad quoted in full p. 30, ante, of this brief. 



80 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

the commencement of the war the Government of the United States 
had formally, both by executive and legislative action, declared that 
Spain had not " assured safety to a vessel of the American Navy in the 
harbor of Havana while on a mission of peace and rightfully there;"' 
that the destruction of the vessel was •'compassed either by the offi- 
cial act of the Spanish authorities or was made possible by negli- 
gence on their part so willing and gross as to be equivalent in 
culpability to positive criminal action," and that through the 
regular diplomatic channels of the Dejjartment of State and our 
Minister to Spain the United States had formally expressed to the 
Spanish Government a demand, couched in regular diplomatic lan- 
guage, that such proper reparation should be made as vas due from one 
civilized nation to another under the circumstances. The claimants 
therefore contend that at the commencement of war, and at the time of 
the peace negotiations in Paris, all the formalities necessary to transform 
any abstract right which they might have had to request the Government 
of the Uuited States. to obtain indemnity for them from the Spanish Gov- 
ernment had been transformed by executive and legislative action into a 
recognition of their claims and a formal demand upon Spain to make 
adequate reparation therefor. 

From April 21st until July 30th, during the period of active hostili- 
ties between Spain and the United States, no diplomatic relations existed 
between the two countries, and there was therefore no further correspond- 
ence in regard to these claims and the status was exactly the same on 
July 30th as it was on April 20th, 1898. 

When Spain, thoroughly realizing the hopelessness of the contest, 
requested a cessation of hostilities, and instituted negotiations of peace, 
the Due d'Almodovar del Rio, on behalf of the Queen Regent, and 
through the French Ambassador, made the first advances in July, 
1898, Mr. Day responded on July 30th, 1898. in a letter setting 
forth the terms upon which the President of the United States was 
willing to make peace with Spain, and in which, witbout making 
specific reference to the claim of any citizen or of any classes of 
claims of citizens of the United States, he declared that claims of our 
citizens for injuries to their persons and property during the late insur- 
rection in Cuba must be provided for by the cession of Porto Rico 
and other territory.* The expression used was broad enough to cover 
every claim which the United States might have put forward at that time 
against the Government of Spain, and if Secretary Day had appended to 

* " The President, desirous ot exhibiting signal generosity, will not now put forth any 
demand for pecuniary indemnity. Nevertheless, he cannot be insensible to the losses and 
expenses of the United States incident to the war, or to the claims of our citizens for 
injuries to their persons and property during the late insurrection in Cuba. He must 
therefore require the cession to the United States, and the evacuation by Spain of the 
islands of Porto Rico and other islands now under the sovereignty of Spain in the West 
Indies, and also the cession of an island in the Ladrones to be selected- by the United 
States" (U. S. For. Rel, 1898, 821). 



A.RGDMEHT OF (HAS. H. BUTLEK IN MAINE CASKS. SI 

the letter a schedule of the claims which he intended to cover by his general 
expression, it would not only have been eminently proper for him to have 
included the claims of the petitioners arising from the destruction of 
the Maine therein, but it would have been eminently improper for him 
to have excluded them therefrom; there is nothing whatever in the 
language used which justifies the statement made by the counsel who so 
ably closed the case on behalf of the Government that the evident intent 
of Secretary Day's letter was to positively exclude the claims arising 
from the destruction of the Maine. 

Nothing further appears to have been said about the Maine, ox any 
other claims until after the peace protocol had been signed, and the Com- 
missioners were negotiating the treaty of peace in Paris, when a corre- 
spondence took place between Mr. Day and. Mr. Rios. one of the Spanish 
Commissioners, in which Mr. Day assured him that all claims. National 
and individual, were relinquished, and that citizens of the United States 
would look to their own Government for indemnity fur the claims 
relinquished by the treaty.* 

On December 5th. 1898, at a meeting of the Commissioners, the 
articles of the treaty from I. to VIII. were read and agreed upon, subject 

* M. Rios, on November 22d, addressed a letter to Mr. I lay, who was then President 
of the American Commission, in which he said: 

" The Secretary of State having stated in his note of July 30th last, that the cession 
by Spain of the Island of Porto Rico and the other islands now under Spanish sover- 
eignty in the West Indies, as well as one of the Ladrones, was to be as compensation for 
the losses and expenses of the United States during the war, and of the damages suffered 
by their citizens during the last insurrection in Cuba, what claims does the proposition 
refer to as requiring that there shall be inserted in the treaty a provision for t lie mutual 
relinquishment of all claims, individual and national, that have arisen from the beginning 
of the last insurrection in Cuba to the conclusion of the treaty of peace? " (Message of 
President transmitting treaty of peace to Senate, Sen. Doe., 55th Cong.. '■', Sess., No. 62, 
Part 1, January 4. 1899, p. 217). 

On the following day Mr. Day replied, and after restating M. Rios' question, said 
" While the idea doubtless was conveyed in the note of tin- Secretary of State of the 
United States of the 30th of July list, that the cession of 'Porto Rico and other islands 
now under the sovereignty of Spain in the West Indies, and also the cession of an island 
in the Ladrones, to be selected by the United States' was required on grounds of 
indemnity and that, 'on similar grounds the United States is entitled to occupy and will 
hold the city, bay, and harbor of Manila, pending the conclusion of a treaty of pejee 
which shall determine the control, disposition and government of the Philippines,' no 
definition has as yet been given of the extent or precise effect of the cessions in that 
regard. The American Commissioners therefore propose, in connection with the cessions 
of territory, ' the mutual relinquishment of all the claims for indemnity, national and indi- 
vidual, of every kind, of the United States against Spain and of Spain against the United 
Stales, that may have arisen since the beginning of the late insurrection in Cuba and 
prior to the conclusion of a treaty of peace.' 

" And I may add that this offer is made by the American Commissioners in full view 
of the fact that the citizens of the United States, having claims that come within the fore 
going relinquishment, will, on the strength thereof, apply to their own Government for 
indemnity." (Doc, No. 62, cited mc/ira. 219.) 



82 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

to modifications as to form, upon which the Secretaries were to agree.* 
The then language of this article was practically the same as the first 
clause of the article which was finally adopted and incorporated into the 
treaty as concluded and ratified, the second clause as to adjudication of 
claims by the United States of the article as it now is included in the 
treaty was not included in the first draft. On December 6th, as appears 
by protocol No. 20 of the Peace Commissioners, articles were presented 
by the American and Spanish Commissions each to the other, but it is 
evident from the final adoption of the first eight articles on the previous 
day that these were, as stated in the protocol of that dayf ''Additional 
Articles," and were not intended in any way to supersede the article 
already adopted, by which both Governments had mutually relinquished 
all claims against the other. 

The article which the Spanish Commissioners wished to have inserted 
in the treaty of peace in regard t<> the Maine provided for the appoint- 
ment of an international commission, consisting of seven experts " to be 
entrusted with investigating the causes of and responsibility for the 
Maine catastrophe " and which, after prescribing the method ot appoint- 
ment of the Commissioners and that each Government should pay one- 
half of the expenses, provided that : " in the event of the Spanish Gov- 
ernment being found responsible, it shall pay to the United States its 
share of the expenses of the Commission. Further, a Spanish war ship 
must go to New York and salute the flag of the United States."! 

It also appears by protocol No. 20 that this article was rejected by the 
American Commissioners, who stated that they considered the case as 
closed; but the President of the Spanish Commission stated that he 

* "The reading in English and Spanish of the articles of the treaty from the first to 
eighth, inclusive, was then proceeded with, and they were approved by both Commissions, 
which declared them to be final save as to mere modifications of form, upon which the 
Secretaries-General might endeavor to agree." (Sen. Doc. No. 62, p. 230.) 

The article containing the relinquishment of claims, which was then numbered VI. 
but afterwards became No. VII. by a re-arrangement of articles included in those read, 
was as follows : 

" Article VI. — The United Slates and Spain, in consideration of the provisions of this 
treaty, hereby mutually relinquish all claims of indemnity, national and individual, of 
every kind (including all claims for indemnity for the cost of the war), of either Government 
or of its citizens or subjects, against the other Government, that may have arisen since 
the beginning of the late insurrection in Cuba and prior to the ratification of the present 
treaty." (Sen. Doc. No. 62, p. 234.) 

f Sen. Doc. 62, p. 242. 

\ The proposed " Additional Article " then provided that: 

"If, on the contrary, the Commission shall decide that Spain is not responsible, 
attributing the catastrophe to an accident inside the vessel or other fortuitous cause, the 
Government of the United States shall pay to Spain its share of the expenses of the Com- 
mission. Moreover, the President of the United States shall report the arbitral award to 
the Congress of the United States, setting forth in the official message the righteous course 
of the Spanish nation." (Sen. Doc. No. 62, 243.) 



ARGUMENT OF CHAS. H. BUTLKK IN" MAINE CASES. 83 

was unable to consider it as closed since the President ol the United 

States had referred to it in Ins message to Congress on the previous Mon- 
day, to which the President of the American Commission replied that 
they had not received a copy of the message and therefore had not 
read it, to which the President of the Spanish Commission replied that 
he had in his possession an extract from it which he could produce, lint the 
American President answered that the American Commissioners did not 
care to continue discussion of the subject on the present occasion. This 
closed the incident for the day, and other additional articles were then 
proposed by the Spanish Government, some of which were rejected 
and some of which were accepted.* <>n December 8th, the meeting of 
December 7th having been postponed to that date, the protocol of the 
preceding session was read and approved, and the Spanish Commission- 
ers then ohservedf that although the American Commissioners had 
rejected the article presented by them relating to the Maine, they con- 
sidered it their duty to insist upon this question being submitted to 
arbitration. The American Commissioners answered referring to the 
observations made by them on this subject of the last session.]; 

* Sen. Doc. No. 62. pp. 243, 244. 
t Sen. Due. No. 62, p. 250. 

\ To t liia the Spanish Commissioners, who seemed unable to understand the situation, 
and under the impression thai by constant insisting they might obtain some concession, 
replied that since 

" tliis new proposal for arbitration was also rejected they would ask the American Com- 
missioners to be pleased to propose some method of clearing up the matter of the Maine, 
and the responsibility growing out of it, so that the unjust prejudice against Spain shown 
in the United States by reason of an incomplete investigation might disappear, and the 
resentment of Spain because the uprightness o| her authorities or subjects, and the 
capacity of her administration to guarantee the safety in her ports of vessels of a nation 
with which she was at peace, had been placed in doubt, might also be blotted out." 

The American Commissioners replied to this that they had no method to propose 
^Sen. Doc. No. 62, p. 251), and this is all that transpired verbally between the Commis 
sioners upon that day as appears in protocol No. 21. but as an annex to the protocol a 

memorandum of the Spanish I' missioners was submitted in which the Commissioners 

explained as the reason why they had insisted upon the arbitration the fait that the 
President had in his message of December 5th referred to the explosion of the M,n>„ as 
suspicions, and the memorandum ended with the following remarkable statement : 

"The Spanish Commission, therefore, cannot yield to such a refusal, and solemnly 

i'. rds its protest against it, setting forth that in the future it shall never be lawful for 

those who oppose the investigating of the cause of thai horrible disaster, to impute, 
openly or covertly, responsibility of any kind therefor to the noble Spanish nation, or its 
authorities " (Sen. Doc No. 62, p 260.) 

On th'' following day alter an exchange of courtesies the treaty was prepared and 
signed, and Mr. .1. B. Moore. Secretary of the Commission, transmitted a reply to the 
memorandum of the Spanish Commissioners just referred to, in which he said 

" Respecting the observation in the memorandum of the Spanish Commission upon 
the last message of the President, of the United States, wherein he refers to the disaster 
to the battleship Maine, the American Commissioners feel obliged to decline to enter upon 



Si BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

Meanwhile it appears that the treaty had been redrafted by the Sec- 
retaries, that the article in regard to the relinquishment of claims had 
been revised so as to read as finally adopted,* including the final clause 
as to the adjudication by the United States of the claims relinquished. 

The only possible conclusion which can be drawn from the corre- 
spondence between the American and Spanish Commissioners and the 
protocols of their conversations in regard to the Maim: disaster is that 
Spain requested an international adjudication of t he causes of the de- 
struction, and the United .States refused the request ; and as the Span- 
ish Commissioners, in their memorandum, attempted to say that there 
could be no imputation as to her fault in the absence of such arbitra- 
tion, the United States Commissioners inserted in the treaty an addi- 
tional clause to the effect that the United States would itself adjudicate, 
as well as settle, the claims of its citizens which had been relin- 
quished in order that there might be no question as to the right of the 
United States to settle with its citizens in such manner as it should see 
fit, even if it required an adjudication which would necessitate an in- 
vestigation of every cause connected with the claims. This contention 
is borne out by the statement of Mr. Moore, referring to the well-estab- 
lished precedents and practice in the history of our country. Mr. Moore 
undoubtedly had in mind the Mexican case in which we made peace with 
Mexico and then assumed and settled all of the claims owing to 
American citizens and in regard to which there was no limitation as to 
tlie method of investigating the cause; to the distribution of the Alabama 
award in which we received from Great Britain *lo, 500,000 as a lump 
sum, and distributed the same pursuant to the awards made by the Court 
of Alabama Claims; to the treaty with Spain in 1819, by which we ac- 
quired Florida and released Spain from the claims due to our citizens, 
and thereupon adjudicated the claims without any limitation upon the 
power regardless of how they might have arisen. 

With the signature of the treaty by the Commissioners of both 
Spain and the United States, the negotiations were concluded and were 
merged into the treaty itself, and the claimants contend that the words 
of the treaty as they stand in Article VII. providing for a mutual 
relinquishment of all claims by both Governments, national and indi- 
vidual, against the other, and for the adjudication by the United States 
of the claims relinquished by its citizens, are so clear that they cannot 
be changed by any interpretation, and that in the absence of any am- 

any discussion of the same, in obedience to well established precedents and practice in the 
history of their country " (Sen. Doc. No. 62, p. 262). 

* "Article 1. The United States and Spain mutually relinquish all claims for indem- 
nity, national and individual, of every kind, of either Government, or of its citizens or 
subjects, against the other Government, that may have arisen since the beginning of the 
late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, 
including all claims for indemnity for the cost of the war. 

" The United States will adjudicate and settle the claims of its citizens agaiust Spain 
relinquished in this article" (Sen. Doc. No. 62, pp. 266, 267). 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. c-5 

biguity it is unnecessary, and therefore not allowable, to resort to the 
protocols of the Pence Commission or to the correspondence relating 
thereto in order to obtain any different construction than that which 
appears upon the face of the article. The elementary rule of law, that 
all prior negotiations and correspondence are necessarily merged into the 
instrument itself, is as applicable to treaties between nations as it is to 
contracts between individuals, and. therefore, the protocols upon which 
the Attorney-General spent so much time cannot in any way affect the 
construction of the clause by which all the claims were relinquished 
against Spain by the United States and assumed by that Government 
as to its citizens. The complete record from the L5th day of February 
to the Kith day of December, 1898, has been rehearsed under this point 
in order that this Court might have before it. in a condensed and con- 
secutive form, everything which related to these claims from the time 
that they first arose until the time that they were finally extinguished as 
against Spain and assumed by the United States. 

It is not proper, however, to close this point without referring to the 
argument of the counsel closing the case for the Government on the oral 
argument, especially in regard to his proposition that the protocols of 
December 5th — December LOth of the Peace Commission in Paris are to be 
construed practically into a solemn contract between the United States 
and Spain, that from that, time the incident should be closed not only as 
against the Spanish Government but also between the United Statts and 
its own citizens in regard to the adjudication id' these claims.* 

His earnest appeal to this Court not to further wound the sensibilities 
of a friendly nation and not to disgrace a once powerful but now un- 
fortunate nation, might indeed have been effective before an international 
tribunal bad he been representing the Spanish Government and the 
United States was presenting these claims; inasmuch as bis argument 
was to the effect that the absolute rights of American citizens under a 
treaty made on their behall by their own Government should be sub- 
ordinated to the ••sensibilities*' of a foreign power, counsel docs not 
consider that it requires any refutation beyond its mere statement. 

If the treaty of Isms is to he construed in connection with correspond- 
ence and protocols, this Court must presume that the American Com- 
missioners were regarding not the •■sensibilities*' of tic Spanish 
Government on points id' honor, but the actual vested rights and prop- 
erty of American citizens. On the present occasion no interests of Spain 
are at stake and therefore the presumptions need not be construed as 
agaiust a victorious power insisting upou terms in a treaty of peace, but 
in favor of those citizens who were not present and whose Government 



* Tlie word " protocol" as used in treaty negotiations does not mean agreement, as 
it sometin.es does when the foreign offices of different governments finally dispose of a 
diplomatic matter, but simply minutes of a meeting. For this scum', see U. S. For. Rel., 
1871, under Greal Britain, and proceedings of Commissioners negotiating the Treaty oi 
Washington of 1871. 



86 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

sacrificed their claims for its own purposes with full knowledge, as was 
expressed by Secretary Day, that they would look to their Government 
for the adjudication and payment of the claims which were thus sacrificed 
for the sake of peace and in order that no further punishment need to 
be meted out to the nation which had caused these great injuries to 
American citizens and against whom the claims not only existed but 
had actually been presented by this Government. 



TWENTIETH. -This is a domestic tribunal. 
Spain is not before tbe Court, and in con- 
sidering- Article VII. only tbe rights of Amer- 
ican citizens can be considered. 

The closing of the argument of the Government contains a plea for 
Spain and an effort is made to induce this Court to consider itself under 
some obligation to the Spanish Government not to adjudicate the Maine 
claims by reason of an implied promise made by the American Commission- 
ers to the effect that the incident wasclosed and would never be reopened. 

In the last point that matter was discussed and the correspondence 
and protocols were quoted from at length to show that no such construc- 
tion could possibly be placed upon the treaty or the correspondence in 
regard thereto or the protocols of the Commissioners in Paris. The 
counsel for the Government have argued this case as though Spain had 
some interest in the amount involved which is to be paid to American 
citizens. They have made arguments similar to those which might 
have been made had the treaty contained a provision that in case the 
amounts assumed by the Government of the United States upon adjudi- 
cation amounted to over a specified sum, Spain should pay all of such 
excess and that they were bound on behalf of Spain to keep the amount 
below the specified figure. 

Had Spain remained liable in whole or in part it might be proper at 
the present time for that Government to be represented before this Com- 
mission and to protest against the allowance of claims which had been 
excluded from the relinquishment or the assumption clause. No such 
condition exists, however, and it is absolutely immaterial to Spain 
whether the United States, in adjudicating and settling these claims, 
shall be obliged to pay five million dollars or fifty million dollars. Spain 
has been forever released and the United States alone has undertaken to 
adjudicate and settle the claims. Citizens of the United States are the 
only parties, and therefore the rules of the construction of this treaty 
must be exactly as though the United States and its citizens were the 
..inly parties to the treaty. In fact, the final clause of Article VII. of 
the treaty is practically a contract or treaty between these claimants and 



ARGUMENT OP CHAS. H. BUTLER IX MAINE CASKS. 87 

the United States, and under these circumstances it must be construed 
liberally for the claimants and strictly against the United States. 

If the argument of the counsel for the Government is correct and 
Spain has an interest in the amount paid these claimants, the argument 
might just as well be carried to a further point, and at some subse- 
quent period Spain can come in and declare that the claims had been 
stated as amounting to many more millions of dollars than the Govern- 
ment has finally paid upon the judgments of this Court, and demand 
the difference between that total and the minimum to which the 
Attorney-General hopes to reduce these awards on the ground of false 
representations, and that it parted with Porto Rico and its other posses- 
sions, supposing that anywhere from $1(5,000,000 to $60,000,000 was to 
be paid by the United States to its citizens. 

It is a well settled rule in the construction of treaties that clauses of 
this nature must be construed strictly against the party making them.* 
The United States needed these claims in order to make peace. It took 
them by the right of eminent domain, con fisca'ed them and not only 
rendered them valueless as against Spain, but took it forever out of the 
power ol the United States to present them against Spain at any future 
time, and therefore in the construction of this clause v\^-y\ presumption 
must betaken against the United States and in favor of everj person 
who had a claim or an abstract right of any kind to demand indemnity 
for any loss which he had sustained. 

Again, if the argument of the Government's counsel is correct, the 
Commissioners at Paris pledged to Spain the solemn faith of the United 
States that the explosion of the Maine would never be even referred to 
again by any official of the United States in any manner derogatory to 
Spain. 

It must be admitted that the requests of the Spanish Government to 
arbitrate the matter had nothing whatever to do with the financial side 
of the case, but were only for the purpose of protecting the good name of 
Spain, and they were called forth, as stated in the protocols, by the 
allusion of President McKinley in his annual message <>l December 5th, 
1898, to the destruction of the Maine as being suspicious. 

They asked that the matter be arbitrated because the good name of 
Spain had been attacked and she had been charged with inability to pro- 
tect a foreign warship. 1 hat was the sole ground of the request on 
both occasions upon which it was made, and on both occasions the 
American Commissioners declined to open the subject, because they said 
the incident was closed. As stated during the argument of the 
demurrers by the President of this Court the Spanish never used the 
words attributed to them by counsel for the Government, that the 
matter /ens settled. 

Counsel for the Government cannot confine their arguments to the 



* The cases citod under the Thirteenth Point, page 44, ante, of this brief as Lo strict 
construction of tariff laws against the United Stales are also applicable lo this point. 



88 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

financial elements of the question; if their contention is sustained it will 
practically be an adjudication by this Court that if on any occasion here- 
after the President of the United States or any other person high in 
authority shall declare that the destruction of the Maine was due to 
Spanish wrongdoing or Spanish negligence, there will have been a breach 
of the treaty, for which Spain could justly demand indemnity. 



TWENTY FIRST. The United States has 
received compensation for these claims and 
holds it in trust for these claimants. The Gov- 
ernment which receives lands as indemnity 
for national and individual claims is in the 
same position towards its citizens whose 
claims have been relinquished as though the 
indemnity had been paid in cash. 

Counsel for the Government intimated in their argument that these 
claims had never been heard of until after the treaty had been made 
and ratified and this Court had been created. In this they are mistaken. 
As early as February 'iS, 1S9S, counsel for the claimants, when there 
was no thought whatever of representing them before this Commission, 
stated in the public press that the United States had a right to demand 
indemnity for all those who had sustained loss by the explosion of the 
Maine* Be that as it may, however, the United States, as appears by 
the letter of Secretary Day, which has already been quoted from at 
lengthf, and the protocols of the Peace Commission, demanded and re- 
ceived the Island of Porto Rico, the other islands of the West Indies 
under Spanish sovereignty and the Island of Guam as indemnity not 
only for war expenses but also for injuries of its citizens to persons and 
property during the period specified in the Treaty of Peace. Leaving 
the Philippine archipelago entirely out of the question, the United 
States to-day owns and exercises sovereignty over a large extent of most 
valuable territory, which it acquired to some extent by the confiscation 
and surrender of the claims of its citizens against Spain, and it does not 
lie in the mouth of the counsel representing the Government to now 
deny the existence of the claims which were used in part payment for 
this property. 

The value of the property has nothing whatever to do with the mat- 
ter ; when a government accepts territory for national and individual 
claims it must itself take the risk of the value of the indemnity accepted 



*See N. Y. World for February 28, 1898. 

f See extracts from letter of Secretary Day to Duke d'Almodovar del Rio, of July 30, 
1898, referred to on page 78, ante, of this brief. 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 89 

and must pay the claims of the citizens, which its own constitution for- 
bids it to take without just compensation, before it can realize its own 
national demands. Whether or not the value of the territory acquired 
by the United States exceeds the amount of the individual claims suffi- 
ciently to completely indemnify this Government for the cost of the war 
is a matter for which the Commissioners at Paris making the treaty, the 
President approving it, and the Senate ratifying it, are responsible: and if 
they believe that the territory acquired was sufficient to indemnify the 
Government, or was all that could be obtained, responsibility falls upon 
them, and the individual claimants cannot in any way be affected 
thereby. This is not the first time that the United States has accepted 
territory as indemnity and paid the claims of the citizens. In the cases 
of Louisiana ceded by France, and Texas and California ceded by 
Mexico, there were monetary considerations in regard to the claims 
which were surrendered at the time; but in the case of Florida the laud 
was taken and claims to the amount of 85,000,000 were assumed and 
paid, and the counsel for the Government himself admitted that there 
was a fund in this case. In fact, he declared that Spain was paying the 
claims and not the United States.* 



TWENTY SECOND. - Governmental obliga- 
tion for personal injuries to, or deaths of, citi- 
zens of other countries recognized under in- 
ternational law as individual claims 

It seems hardly necessary to refer to this point, but iu view of certain 
questions asked on the argument counsel calls the attention of the Court 
to the numerous cases in Moore's Arbitration in which indemnity for 
personal injuries to, or deaths of, its citizens in foreign lands has been 
demanded by the Government of the United States from the government 
of the country iu which the injuries and deaths occurred : and also 
in which the United States has paid indemnity to foreign governments 

* Mr. Russell, in the course of his argument, said (p. 32): " I presume the prece- 
dents referred to are the numerous treaties in which the form of the treaty is that of a re- 
linquishment; hut the reality of the treaty is that the foreign nation turns over a fund in 
payment of and by way of donation for political reasons on account of the claims asserted 
and made by our Government. I am not raising any objection to the proposition that 
Spain paid over a fund. I am very glad it has been brought forward. 

Mr. Maury : The difference between this and other cases is that we agreed to pay a 
certain amount — there was a maximun, $3,000,000, I think. 

Mr. Russell: It is Spain that is paying the claims provided for in Article VII. and 
not the United States — paying them out of a fund provided in the treaty, just as if it was a 
fund of money originally. This land is to be regarded as money, and so much of it is to 
be paid as the claims are really worth and not a maximum to be distributed upon some 
loose principles of international comity." 



90 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

under similar circumstances. Wrongful governmental acts and negli- 
gence to prevent mob violence have generally been placed upon the same 
footing. The Senate Committee on Foreign Relations so placed the 
cause of the Maine's destruction.* 

Whether the destruction of the Maine was the result of criminal 
negligence on the part of the Spanish Government in not preventing 
it, or of actual wrongful governmental act, is immaterial at the present 
time, as the petitions allege that the destruction of the vessel resulted 
from one cause or the other, and for a cause for which that Government 
was responsible. The Government of the United States has necessarily 
admitted this by demurring, in fact, it has gone further by affirmatively 
alleging that the act was a cause of the war. 

This Court is to adjudicate the claims before it on the principles of 
equity and of international law. The rules of the common law and of 
statute law as administered by our municipal courts do not apply or bind 
this Court. Claims for death and injuries can never exist between govern- 
ments under any statute, for no power exists to enact the statute. They 
can be recognized by this Court under the principles of international 
law;f because the cession of Porto Eico was demanded as indemnity for 
injuries of our citizens to person and property;! an< i because equity de- 
mands that when the United States agreed to adjudicate and settle 
claims of citizens relinquished, it thereby agreed to give to its citizens all 
that it already had or could have demanded from Spain in their behalf. § 

One specific instance will be cited as the basis for the claims of peti- 
tioners who are relatives of those who were killed. 

The claims of the families of the passengers and crew of the Vir- 
ginius, who were shot in Cuba in 1873, were settled by the payment of 
a lump sum of $80,000 by Spain. || 

The agreement provided that the purpose of the payment was the 
relief of the families or persons of the ship's company and passengers, 
and the money was accepted by the United States Government in satis- 
faction of reclamations of any sort, which, in the sense of personal 
indemnification, might be advanced against the Spanish Government. 
It also provided: " The President of the United States will proceed to 
distribute the same among the families, or the parties interested, in the 
form and manner which he may judge most equitable, without being 
obliged to give account of this distribution to the Spanish Govern- 
ment. " 

* See extract from Report of April 13, 1898, quoted under Seventh Point, p. 27 of 
this brief. 

f See cases cited under Fifth Point, pp. 21, 22, ante. 

% See Secretary Day's letter of July 30, 1898, cited on p. 80, ante. 

§ See Senate Report and claims of this nature referred to therein, cited on pp. 27, 28, 
ante. 

J Protocol or Agreement of February 27, 1875, U. S. For. Rel., 1875, under Spain; 
see sub-head Virginius. 



ARGUMENT OF CHAS. H. BDTLKR IN MAINF. CASES. 91 

Subsequently the money was received and distributed by President 
Grant. The money appropriated to the families was divided according 
to a system which was adopted as being the most equitable, and if the 
Court will examine the sixty petitions and upwards tiled by the firm of 
the counsel for these claimants it will find that the same basis of distribu- 
tion which was adopted by President Grant has been adopted as the basis 
of the demands in these cases.* 



TWENTY-THIRD. The Statute of March 30, 
1898, is not a bar to the petitioners' claims; 
furthermore, payments thereunder cannot be 
set up on a motion to dismiss for -want of juris- 
diction or by demurrer. 

The act of March 30, 1898, was not for indemnity for death or in- 
jury. It was to reimburse for articles lost. The amount was one year's 
sea pay. The payments had to be made pursuant to provisions of the 
act and there is nothing on the record of these proceedings to show t hat 
these petitioners ever received any money under the act or accepted its 
provisions. 

The United States was not responsible for the destruction of the ves- 
sel and the payment was a mere gratuity. 

The claims against Spain were actual property rights, and if the 
United States had attempted to confiscate or condemn them by a nominal 
payment in this manner the act would have been unconstitutional. 

The claim against Spain was necessarily unaffected, as the act was passed 
March 30, and the treaty was not made and the debt assumed by the 
United States until December 10, 1898. 

During the reconcentrado period in Cuba many Americans were as- 
sisted by the United States Consul. Some of these persons have claims 
against Spain for their ill treatment. Is this Court to decide that the 
help extended in that manner wiped out claims against Spain which 
were assumed a year later ? 

As stated under a previous point, Congress appropriated $10,000 for 

" III. — The several amounts allowed as above are to be paid to the widow, children 
parents, or brothers and sisters of the deceased as follows : 

(1) To the widow of the deceased. 

(2) If no widow, to the children of the deceased in equal shares. Where such 
children shall be minors, the same shall be paid to a legally appointed guardian. 

(3) If no children, then to the fathei ; if no father, to the mother. 

(4) If no father or mother, then to the brothers and sisters in equal shares. 

(5) If the deceased shall have left no widow, child, parent, brother or sister, no 
amount is to be paid on his account." 

49th Cong., 2nd Sess., Sen. Ex. Doc. No. 82. Mess, of President Cleveland on distri- 
bution Virginiua fund, Feby. 14, 1887. 



92 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

the crew of the General Armstrong, but that did not interfere with pressing 
claims of the same persons against Portugal for the damages caused by 
its violations of neutrality in the Harbor of Fayal. The effect of this 
statute has been covered so thoroughly in the able argument of other 
counsel, that it will not be enlarged on here. 

Had the claims against Spain been referred to an international tribu- 
nal, Spain would not have been able to plead this statute and payments 
under it, if any were made: and, as the United States stands in the shoes 
of Spain before this tribunal, it cannot plead anything as a defense which 
would not have been pleadable by Spain. 



TWENTY- FOURTH — A moral obligation 
rests upon the United States and upon this 
Court to adjudicate these claims for the peti- 
tioners. 

This Court will take into consideration the great disadvantage under 
which the petitioners have been placed by the obliteration of their claims 
against the Spanish Government and the assumption thereof by the 
United States under the treaty of 1898. 

Doubtless the United States had the constitutional right to relieve 
Spain from all obligation for the wrongs committed by that country upon 
American citizens, arising from the abhorrent condition of the island of 
Cuba, and culminating in the destruction of the Maine and the death of 
two hundred and sixty-six American seamen, and to assume, adjudicate 
and settle these claims itself: but although this right existed, availing 
of it has necessarily placed all of the claimants under the disadvantage 
of having the Government of the United States arrayed against 
them instead of being upon their side. Had the Treaty of Peace pro- 
vided that Spain should remain liable for all claims owing by that 
Government to citizens of the United States, and provided for a regular 
international tribunal to adjudicate such claims, every suitor before this 
Court would have been represented before such tribunal by the Govern- 
ment of the United States, which would have used its tremendous power 
to procure for each claimant not only a favorable adjudication on 
every point of law involved, thus extending the liability as far as pos- 
sible from a legal standpoint, but it also would have urged such tribunal 
to render as large an award as possible from a pecuniary standpoint. 

Since, however, the United States has released Spain from all 
liability, and agreed not only to adjudicate these claims, but also to as- 
sume the payment thereof, the claimants now find that they have not only 
lost the weight and influence of their own Government in urging these 
claims to the widest extent and for the fullest amount, but they find 
that Government appearing against them before this tribunal, with 



ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. P3 

an array of able counsel especially employed not only to limit the 
liability of Spain to the narrowest point, and reduce the loss for which 
citizens of this country are entitled to indemnity to the smallest amount, 
but, as appears by these demurrers, to obtain from this Court, created 
by Congress for the purpose of adjudicating and settling these claims, 
a legal decision that the claims do not even exist. 

This Commission must, as it undoubtedly will, always bear in mind 
that in adjudicating these claims it is laying down the law for the 
future; it must remember that some day decisions which this Court 
shall make determining the extent of the liability of the United States 
as the assuming debtor for crimes committed by the Spanish Govern- 
ment upon American citizens, will be cited against the United States as 
the measure of liability which can be asserted by that Government itself 
as resting upon foreign nations under similar circumstances. 

A grave responsibility rests not only upon the Spanish Treaty Claims 
Commission as a Court, but also upon the Attorney-General, for the posi- 
tion taken by him on behalf of the Executive Department of this Govern- 
ment. His arguments and briefs will undoubtedly some day be quoted 
before The Hague, and other international, tribunals as declaratory of 
the full measure of liability which, in the opinion of the present executive 
department of this Government, rests upon a foreign government for 
the ill-treatment of American citizens : such liability cannot be any 
greater when the foreign country itself has to pay the damages sustained 
by our citizens than when the United States is obliged to pay them by 
virtue of an assumption similar to that of the treaty of 1898. 

The foregoing remarks relate particularly to the questions of inter- 
national law to be determined by this tribunal and not to the amounts of 
damages to be assessed by it. It is eminently proper that this Court 
should closely scrutinize every claim presented to it so far as the amount 
claimed for damages is concerned. Possibly some of the claims for 
damages to property which it will be called upon to adjudicate may have 
been estimated by the sufferers at amounts which will bear inspection, 
and a sum less than that claimed would reimburse the claimants for the 
damages sustained. So far as the facts are concerned, this Court should 
require the fullest proof which can be obtained that the injuries actually 
were received and the loss actually was sustained, but as to the principles 
ol equity and of international law involved, let this Court remember that 
the protection which must be accorded to citizens of the United States 
in foreign lauds must be so full and complete that plantations belonging 
to American citizens cannot be burnt and pillaged, that American citi- 
zens cannot be ruthlessly shot or imprisoned regardless of the forms of 
law and the protection afforded by international law and by treaty stipu- 
lations, and that above all our soldiers and sailors cannot be hurled into 
eternity from the deck of a battleship in a so-called friendly country's 
harbor while on a mission of peace and rightfully there. 



91 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 

TWENTY-FIFTH.— The demurrers should 
be overruled and the claimants awarded the 
amount of their damages, as alleged in the 
petitions. 

BUTLER & IIARWOOD, 

A Morneys for Claimants, 

135 Broadway, 

New York City. 

Charles Henry Butler, 

Of Counsel. 



[F3788] 



The Responsibility of Spain 



FOR THE 



Destruction of the United States Battleship Maine 
IN HAVANA HARBOR, FEBRUARY 15, 1898, 



AND THE 



ASSUMPTION BY THE UNITED STATES, UNDER THE TREATY 

OF 1898, OF SPAIN'S PECUNIARY LIABILITY FOR 

THE INJURIES TO, AND DEATHS OF, 

HER OFFICERS AND CREW. 



Argument 



OF 



Charles Henry Butler, before the Spanish Treaty 
Claims Commission, December 18-21, 1901, 

On behalf of Claimants represented by Butler & Harwood. 



